Rebuilding or Repairing. 23.-Where company elects to rebuild, there can be no claim for rent during the time necessarily taken for that purpose; there is no foundation for such claim until, at least, after a reasonable length of time has elapsed. St. Paul F. & M. Ins. Co. v. Johnson, 77 III. 598. 24. The facts that assured is present while company is rebuilding and makes no complaint or suggestions, although requested to do so, and points out no objections when work is finished, are proper to be considered by jury as evidence of no defects. Court charged jury that "it was not duty of plaintiff to superintend or make suggestions. When defendant undertook to repair, it did so at its own risk and peril. Held, error, as it naturally led jury to discard above facts as not being entitled to any consideration. Id. 25.- Where loss, if any, is made payable to a mortgagee, the exercise of the option to rebuild on part of company by giving notice to that effect, the contract to insure is superseded by a building contract, and the title to the cause of action founded upon it is in the assured and not in the mortgagee. Hence company not liable to an action by the latter. Heilmann V. Westchester Fire Ins. Co., 75 N. Y. 7. 26.- A rebuilding of property by a third party does not release the insurance company from the obligation under its policy. People's Ins. Co. v. Straehle, 2 Cin. Supr. 186. 27.- Cost of replacing or rebuilding may be proved by experts. Wynkoop v. Niagara Fire Ins. Co., 12 Ins. L. J. 253; 91 N. Y. 478. 28.- An insurer's option to pay or rebuild when premises are destroyed by fire is not sufficient to raise an equity in favor of third persons disappointed by the exercise of the insurer's election to pay, although they would be entitled to the use of the structure if rebuilt. Quarles v. Clayton, 87 Tenn. 308; 3 L. R. A. 170; 10 S. W. Rep. 505. mercial F. Ins. Co. v. Allen, 80 Ala. 571; 16 Ins. L. J. 641. 30.- Condition giving the company the option to rebuild cannot be invoked as a defense, unless the company has distinctly elected to rebuild and insisted thereon and put the insured in default for refus ing to permit such rebuilding. Duul v. Fireman's Ins. Co., 35 La. Ann. 98. 31. The proof referred to in the clause giving right to rebuild, etc., is the statement or proof of loss unconditionally required to be made by the insured according to the terms of the policy and does not refer to subsequent optional proceedings which may or may not be required. Clover v. Greenwich Ins. Co., 15 Ins. L. J. 214; 2 Cent. Rep. 873; 101 N. Y. 277. 32. The usual option of rebuilding expires when the right of action accrues. on a provision making the policy payable in sixty days after proof of loss. Id. 33. The fact that insured, nine days after the fire, commenced making repairs without notice-immediate repairs being necessary to prevent further damage-did not deprive the insurer of its right to notify the insured of its intention to repair the premises. Where there is nothing to show that the company ever had an intention to repair, and never notified the insured of such intention, and it is clear that the acts of insured in making necessary repairs were in good faith, it has a right to recover its actual loss. Eliot Five Cent Sav. Bank v. Commercial U. Assur. Co., 2 N. Eng. Rep. 536; 142 Mass. 142; 15 Ins. L. J. 777. 34.- An election to repair or rebuild not only binds the company, but obliges it to do so with brick when that is required by a city ordinance, without regard to materials of which building was originally constructed. If company fails to thus rebuild insured may recover as damages the cost of repairing with brick, and it seems rental value may be also taken into consideration in fixing the damages for delay. Fire Association v. Rosenthal, 15 Ins. L. J. 658; 108 Pa. 29. When the policy contains a clause giving the insured the option to repair 474. within a reasonable time, and he claims 35. Where a policy binds a company the benefit of it, this is not a full defense to an action on the policy, unless by the repairs the property is made as serviceable and valuable as before the fire. Com in case of loss to pay the loss or repair the building, its election is established by any act manifesting a choice. Id. 36. The exercise of the option to re ance. Replacing or Repairing Personal Property Abandonment. 41.- Where policy reserved the privilege of replacing property destroyed within a reasonable time, held, in an action upon the policy, that the question whether certain machinery insured had been repaired and replaced within a reasonable time, was a question for the jury, and not for the court, although the facts as to the length and reasons of the delay in furnishing such machinery were undisputed. Haskins v. Hamilton Mut. Ins. Co., 5 Gray, 432 (Mass.) build converts the contract into a building contract, to be performed in the time, if any, named in the policy, or within a reasonable time. A company is liable in damages for failure to rebuild but only for its pro rata share of such damage, based upon the whole amount of insurWhere several companies on same loss have each exercised this same option, a subsequent settlement with some does not release the others from their proportionate share, based, however, on the whole amount of insurance without regard to what the others may have actually paid, or whether insolvent or not liable. Good v. Buckeye Ins. Co., 43"unless they shall, within thirty days Ohio, 394; 15 Ins. L. J. 3. 42.- An insurance policy for $3,000 on machinery bound the company to pay that sum in case of loss or damage by fire, after proof of such loss or damage, furnish 37.- Where a fire policy reserved to the insured with a like quantity of any or insurer the right to rebuild upon notice of all of the said goods, and of the same intention within ninety days of loss by quality as those injured by the fire, or fire, and after such proof insurer served | shall make good the damage or loss by notice of intention to rebuild jointly with paying therefor," etc. Held, 1st, the comother insurance companies; and, before pany had the right, under this policy, to the time to rebuild expired, plaintiff com- pay the damages in money, or repair the promised with all such companies except old machinery, within thirty days, so as defendant, the liability of defendant is to make it as good as it was before the several. Service of notice of its intention fire; 2d, in covenant on this policy the converted the policies into contracts of defendants may show by parol that, after indemnity, to be performed in a reasona- their liability to repair occurred by their ble time; and the liability is several, un-election to do so, and before the expiraless, by agreement with insured, it was converted into a joint liability. Id. 38. Service of notice did not change the terms of the policy, and plaintiff may recover on the policy such share of the whole damage as the sum insured bears to the whole amount insured. Id. 39. After a policy is converted into a building contract the insured may compromise with any of the insurance companies acting jointly, without releasing other companies. Id. tion of the thirty days, they made a valid arrangement with the assured, by which the time for making the repairs was extended beyond the thirty days; and performance of this agreement by them discharges the covenant; 3d, enlargement of the time of performance, waiver of performance by the assured, accord and satisfaction, or tender of performance after the accrual by election of the liability to repair, are good defenses to an action on this policy; and parol proof is admissible to sustain them. Franklin Fire Ins. Co. v. Hamill, 5 Md. 170. 40. Replacing or repairing personal property. Under policy giving twenty days to elect to replace or rebuild, 43. Abandonment. A policy of inthere is no jurisdiction in equity to re-surance is only a contract of indemnity strain assured from removing or disposing against actual loss; the consignee of goods of his goods (before the time of expiration damaged in transit, has no right to for the company to replace them), so that they cannot tell what kind of goods they were; but it would be proper evidence to submit to the jury, and would authorize them to presume that the statement of the loss was in bad faith. New York Fire Ins. Co. v. Delavan, 8 Paige, 419 (N. Y.) abandon them to the company and claim 44. Cross References. Hicks v. Subd. IV. Statement of interest. No. 41. Statutory Provisions. Section twelve. Cancellation. No. 57. placing. Georgia Code, 1882, § 2,816. 46. New Hampshire. Rebuilding or repairing must be begun within twenty days after adjusting the loss and prose Subd. III. Statement or proofs of loss. cuted with diligence until completed. No. 11. Section seventeen. Appraisal. Nos. 8, 17. Pub. Stat., N. H., 1891, p. 486, § 8. 47.- Insured may rebuild or repair at expense of company with damages, if company neglects to adjust within the fifteen days prescribed by the statute, or fails to begin rebuilding or repairing within the prescribed time, or at his option may sue on the policy. Pub. Stat. 45. Georgia. Rebuilding and re- N. H., 1891, p. 486, § 9. STATUTORY PROVISIONS. SECTION IV. This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. New York Standard Form. 1. CONCEALMENT. II. MISREPRESENTATION. III. MATERIALITY. IV. STATEMENT OF INTEREST. V. FRAUD AND FALSE SWEARING. VI. STATUTORY PROVISIONS. I. CONCEALMENT. General rules. What is a concealment. 1. General rules. An inadvertent omission of facts, if material to the risk, and such as the party insured should have known to be so, will render the policy void. Dennison v. Thomaston Mut. Ins. Co., 20 Me. 125. 2. A suppression or misrepresentation of material facts, though from ignorance, mistake, or negligence, stands on the same ground in its effect on a policy, as if such suppression or misrepresentation were willful. But the principle on which this rule is founded, can have no application to the conduct of the insured subsequent to the making of the contract. Miller v. Western Farmers' Mut. Ins. Co., 1 Handy, 208 (Ohio). 3. It is not sufficient to aver in a plea to an action upon a policy, that when the application for insurance was made, the insured concealed a fact material to the risk, and which would have increased it if known. It must also appear that the insured knew of the existence of the fact, and that the fact itself was not open and notorious at the time to all parties. It is not every fact within the knowledge of the insured that he is bound to disclose, and if such facts as the law will require him to disclose are within the knowledge of the insurers, or so connected with the subject insured, that his knowledge may be fairly inferred, the allegation of concealment is unsupported. Merchants' & Manufacturers' Mut. Ins. Co. v. Washington Mut. Ins. Co., 1 Handy, 408 (Ohio). 4.- The neglect to disclose all circumstances, material to the risk, even through inadvertence, and without fraud, will vitiate the policy. Beebe v. Hartford Mut. Ins. Co., 25 Conn. 51. 5.- Insurance was on a stock of goods described as contained in a certain store. Defense was, that assured had failed to communicate the fact, that the upper part of the building was occupied for a dwelling. Held, that the concealment of that fact was not material, unless a disclosure of it would have induced the insurer to decline the risk, or would have enhanced the premium. That in contracts of fire insurance it was sufficient if the applicant for insurance made full and true answers to the questions put to him by the insurer in respect to the subject of insurance; he is not answerable for an omission to mention the existence of other facts about which no inquiry is made, unless he knows such facts to be What is a Concealment. material, and intentionally fails to communicate them. Boggs v. America Ins. Co., 30 Mo. 63. it is not evidence of bad faith which will vitiate the policy. In such case and no statement is made in policy as to occupa 6.— In an action for loss by fire of a tion, it must be assumed that the insurbrewery and its contents where the plaint-ance was made without regard to occupaiffs carried on distilling, evidence that tion. Browning v. Home Ins. Co., 71 N. they had taken no license from the gov-Y. 508. ernment, that they had insured in other 10.- The concealment from an undercompanies as brewers without disclosing writer of any material fact by a broker that they were distillers, and that they had made false representations to other companies, and of the classification of risks and rates in other companies, is irrelevant. People's Ins. Co. v. Spencer, 53 Pa. 353. employed to procure insurance, whether the suppression be lawful or unintentional, is the concealment of the person who employed him. Hamblet v. City Ins. Co., 36 Fed. Rep. 118. 11.- A provision avoiding the policy 7.- Policy contained provision that if there is an omission to make known any "the assured hereby covenants that the fact material to the risk refers to what representation given in the application existed when the policy was taken out. for this insurance contains a just, true and Allemania F. Ins. Co. v. Pittsburgh Expofull exposition of all the facts and circum-sition Soc., 10 Cent. Rep. 292; 11 Atl. Rep. stances in regard to the condition, situa- | 572 (Pa.) tion, value, and risk of the property 12.- Failure of the insured to disclose insured, as far as the same are known to a fact which, if known to the company, them and material to the risk, and that if would have caused it to demand a higher any material fact or circumstance shall rate, or would otherwise have influenced not have been fairly represented, policy it, will not defeat a recovery on the policy, shall be void." Policy was issued upon a unless he knew of such material fact and printed slip describing the property with- that it was material to the risk. * Wytheout requiring any representation in re-ville Ins. & Bkg. Co. v. Stultz, 15 Va. L. gard to its situation, value and risk. J. 328; 20 Ins. L. J. 481; 13 S. E. Rep. 77; Held, that company must be deemed to 87 Va. 629. have waived above condition and could not claim that policy was void because the assured did not fully disclose situation and risk. Commonwealth v. Hide & Leather Ins. Co., 112 Mass. 136. 8.- Policy provided that false representations by the assured of the condition, situation or occupancy of the property, or any omission to make known any fact material to the risk, or an overvaluation or any misrepresentation whatever either in the written application or otherwise, shall render it void. Held, that the intent of the whole provision was to make all representations in legal effect warranties, breach of which to render policy void, whether material to the risk or not, while the mere suppression of or omission to state any other fact should only have that effect when the fact suppressed was one material to the risk. American Ins. Co. v. Gilbert, 27 Mich. 429. 9. If with other inquiries company fails to inquire as to occupation unless there is proof of concealment of the fact, 13.- Verbal statements made by an assured are merely representations, which, if not fraudulent and material to the risk, do not avoid the policy. Id. The 14. What is a concealment. shop of a boatbuilder took fire, but it was put out in half an hour, as was supposed. The owner of a warehouse adjoining, immediately procured insurance on the same, without notifying the underwriters of the fire in the shop. Two days after, the shop again got on fire and was consumed, and the warehouse along with it. The jury acquitted the insured of intent to defraud, but thought the insured should have informed the insurance office of the fire in the shop. Motion to set aside the verdict, and for new trial overruled. Bufe v. Turner, 6 Taunt. 338; 1 E. C. L. 643 (Eng.) |