Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIHST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLBN D. WILLIAMS Cornell University Library KF 1196.A59L77 1873 Digest of fire Insurance decisions in th 3 1924 019 294 820 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019294820 DIGEST Fire Insurance Decisions COURTS OF GEEAT BRITAIN AND NORTH AMERICA. BY H. A. LITTLETON AND J. S. BLATCHLEY. WITH THE ADDITIONAL NOTES TO THE SECOND EDITION, BY STEPHEN G. CLARKE. THIRD EDITION, REVISED AND ENLABUED. By clement BATES, OF THE CINCINNATI BAB. NEW YORK: BAKEE, VOOKHIS & CO., PUBLISHEKS, 66 NASSAU STREET. 18T3. t Entered according to Act of Congress, In the year 1863, Ijy Hknbt A, Littubton and Jobl S. Blatch- LHT, in the Clerk's Office in the District Court for the Northern District of Iowa. Entered according to Act of Congress, in the year 1868, by Bakbb, Voorhis & Co., in the Clerk's Office of the District Court of the United State^for the Southern District of New York. Entered according to Act of Congress, in the year 1878, by Baker, Voobhis k Co., in the Office of the Librarian of Congress, at Washington. PEEFACE TO THE FIRST EDITION. The present work is designed to embrace a digest .of all the decisions on the subject of insurance against fire, pronounced in the Courts of Great Britain and North America, from the earliest times down to the latest reports. We hq,ve examined 2,576 volumes, and have attempted to give abstracts of 930 cases, which are embodied in 1,525 -sections.; and we have read every case cited. The volumes exagqi^d ar^. indicated in the table of re- ports, and the cases examined, in the tkble of ca'ses. We have attempted to make the digest complete only so far as regards fire insurance. That still more bulky division of the law which' era- braces Marine and Life Insurance, we have not attempted to do anything with, though a few cases, which properly belong to that division, have crept into this work. We have appended to each section the date of the decision, which may be found useful in "studying the conflicts and fluctuations of judicial opinion on some branches of the law ; and we attempted to arrange the sections under the several headings in chronological order, but, on account of practical difficulties in the preparation of the work, have not been able in every instance to adhere to that arrangement. We are acquainted with no other work the design of which is to give the entire body of judicial decisions on this branch of the law, and we have had nothing by which to test the completeness of our lists. In examining for cases, we have been compelled to rely on the indices and tables of cases in the reports, and these we have not found to be entirely reliable, as indicating all the c^ses on insurance which they contain. From this cause, as well as because of mistakes and oversights which may have been com- mitted by ourselves, cases which ought to be embraced may have been overlooked. We have, however, used all the means in our power for discovering the cases, and believe that few will be found to have eluded our search. We shall be happy to be advised of any omissions or mistakes which may be discovered. 2 PREFACE. In the preparation of both the body of the work arid the index, we have kept constantly in mind the wants and habits of thought of agents, officers of insurance companies and others, practically engaged in the-business of insurance, as well as of the legal profession ; and the work has not been entirely arranged as it would have been, had we designed it for the latter class alone. Probably no one will become more thoroughly aware of the imperfections of the work than ourselves. Such as it is, however, we submit it to the public, in the hope that the long and weari- some labor it has cost us may be saved in some corresponding degree to those who shall use it. Our thanks are due to many reporters and publishers for permission to use their head notes, and also to John L. Harvey, of the Dubuque Bar, for assistance in the preparation of the work Dubuque, 1862. PREFACE TO THE SECOND EDITION. In preparing this edition of a book so favorably known,, I have in no respect ventured to change the plan of the original work. My aim has been to make it as complete as possible to the present time ; and to this end I have carefully examined every volume of reports published in this country or Great Britain since the former edition appeared, and also a few volumes of prior date q,ccidentally omitted from that edition. The present volume contains an abstract of 1,24:6 cases embodied in 2,'216 sections, being an increase of 316 cases and 691 sections over the former edition. As the value of a work like the present depends greatly upon the readiness with which a case in point may be found, I have taken great pains to make the index and the cross- references at the end of each title both full and accurate. The growing importance- of the interests protected by insur- ances against fire, and the necessity of a collection of the ad- judged cases upon that branch of the law, is well illustrated by the increase of matter in the present edition. If it shall be found of use in lightening the labors of those who may be called upon to consider the many and perplexing questions arising upon con- tracts of insurance, I shall feel that my labor will not have been without reward. STEPHEN Q. OLAEKE. New Yoek, Sept. 1868. PREFACE TO THE THIRD EDITION. The present edition contains an addition of 362 cases, chiefly covering the period beginning with 1868 and ending with June, 1873, but occasionally dating as far back as 1845. All of the cases have been read over with great care — some of them many times — in the endeavor to make each statement precise. Dicta have been preserved, and are distinguished by the name of the judge prefixed in italics ; aTid all rulings which, though not ex- pressed by .the court, are necessarily involved in the decision, have been gathered, and have the word semhle prefixed (e. g., p. 51, § 76). Forms of statement referring to the facts of cases have generally been adopted as more easily understood than theoretical abstractions, and, when possible, langu^e chosen suggesting the reason of a ruling. A few corrections also have been made in previous parts of the work. As will be seen, it was not thought best in the present edition to change the chronological plan hitherto pursued. Having a great preference for the digest form of book on this topic of the law, the undersigned has taken a great profes- sional interest in making his share of the present work as thorough as possible. CLEMENT BATES. OrNOiNNATi, Oct. 1873. TABLE OF CONTENTS. AGENT ALIENATION ALTERATION .... APPLICATION .... ARBITRATION AND APPRAISEMENT ASSESSMENT ASSIGNMENT . • . . BONDS OP AGENTS BOOKS OP ACCOUNT AND VOUCHERS BURDEN OF PROOF BURNING BY DESIGN . BY-LAWS AND CONDITIONS CAMPHENB .... CANCELLATION .... CERTIFICATB .... CHANGE OF YENUE CLASSIFICATION OF RISKS . CONCEALMENT .... CONSEQUENTIAL DAMAGES . CONSTRUCTION .... CONSUMMATION OF CONTRACT . CONTRIBUTION . . , . COUNTERSIGNING BY AGENT COVENANTS TO INSURE . DAMAGES ..... DAMAGES BEYOND ACTUAL LOSS DEPENDENCY OF POLICY AND PREMIUM NOTE DESCRIPTION OF PROPERTY INSURED DISTANCE OF OTHER BUILDINGS . DIVIDENDS DURATION ENCUMBRANCE ENDORSEMENTS ENFORCEMENT OP CONTRACT FOR POLICY ENTIRETY AND DIVISIBILITY OF POLICY PAOB. , 33 56 84 86 106 109 138 142 144 146 148 150 155 156 161 169 170 173 179 181 189 203 207 208 211 230 222 229 286 244 246 247 264 366 367 TABLE OF CONTENTS. ESTOPPEL EVroENCE . . . • EXAMINATION UNDER OATH . EXECUTIONS .. ■' • FALSE SWEARING . . • ■ FLOATING POLICY FOREIGN INSURANCE] COMPANIES FRAUD GARNISHMENT OR TRUSTEE PROCESS GENERAL AVERAGE . GOODS EST TRUST OR ON COMMISSION GUNPOWDER .... ILLEGALITY OF CONTRACT INCREASE OF RISK . INSOLVENCY .... INSURABLE INTEREST INSURANCE COMPANIES . INTEREST IN POLICY . LIEN LIGHTNING .... LIMITATION CLAUSE MORTGAGOR AND MORTGAGEE MUTUAL COMPANIES AND MEMBERS OF NEGLIGENCE .... NEW TRIAJj .... NOTICE OF LOSS OTHER INSURANCE PAROL CONTRACT PAROL EVIDENCE . PAYMENT OF LOSS . PAYMENT OP LOSS TO TRUSTEE PAYMENT OP PREMIUM PLACE OP MAKING CONTRACT . PLEADING AND PRACTICE . PRELIMINARY PROOFS . PREMIUM NOTES PREMIUM NOTES IN ADVANCE" . QUESTIONS FOR COURT AND JURY REBUILD, REPAIR OR REPLACE RECEIVERS .... RECOVERY BACK OF LOSSES PAID REFORM OF POLICY . RE-INSURANCE REMOVAL . RENEWAL OP POLICY RESPONSIBILITY OF ASSIGNEE FOR ACTS OP ASSIGNOR TABLE or CONTENTS. TAOS. RESPONSIBILITT OF ASSURED FOR ACTS OF OTHERS . 583 RETURN PREMIUM •.-.... 585 REVIVAL AOT> SUSPENSION OF POLICY . . .587 RISK . • . 589 SET-OFF ........ 602 STOCK NOTES AND SUBSCRIPTIONS . . . .605 STORING OR KEEPING ...... 610 SUBROGATION ....... 618 SUCCESSIVE LOSSES 634 TAXATION 625 THEFT ......... 639 TITLE 630 • TRANSFER OF STOCK '655 TWO-THIRDS OR THREE-FOURTHS CLAUSE . . .656 USAGE .■ . • 662 USE AND OCCUPATION 665 VALUE ......... 692 VALUED POLICY 695 VENUE 697 WAIVER 700 WARRANTY AND REPRESENTATION .... 709 WATCHMAN ........ 723 WHAT PROPERTY IS COVERED BY POLICY . . .726 WHO MAY SUE 739 WRITTEN PORTION OF POLICY .... 749 TABLE OF CASES. ( Abbott v. Hampden Ins. Co. 60, 361. V. Shawmut F. Ins. Co. 99, 646. Acer V. Merchants' Ins. Co. 362, 454. Adams v. Eockingham Mut. Ins. i 'o. 60. Addison v. Kentucky and Louisville Ins. Co. 248, 351. jEtna Ins. Co. v. Grube, 98, 718. Y. Harvey, 311. T. Jackson, 67, 221, 362. - V. Maguire, 160, 189, 275, 479. V. Miers, 166, 353. V. Phelps, 506. T. Stevens, 627. V. Tyler, 57, 164, 416, 618. .iEtna Live St. F. and Tornado Ins. Co. V. Olmstead, 263. Agnew V. Insurance Co. 573. Albany City Ins. Co. v. Keating, 159. Alchoren v. SavUle, 489. Aldermen v. West of Scotland Ins. Co. 162. AUen V. Charlestown Mut. Fire Ins. Co. 241, 638. V. Franklin Fire Ins. Co. 352. V. Hudson River Mnt. Ins. Co. 251, 283, 477, 579. V. Massasoit Ins. Co. 345. V. Mut. Fire Ins. Co. 335, 636. V. Pacific Ins. Co. 697. V. Vermont Mut. Fire Ins. Co. 222. V. Winne, 541. Alleyn v. Quebec F. Ins. Co. 560. Alliance Marine Ins. Co. v. Louisiana State Ins. Co. 368, 618. Alliance Mut. Ins. Co. v. Swift, 166, 534. Alman, M. cfe Co. v. Phoenix Ins. Co. 51. Alston V. Mechanics' Mut. Ins. Co. 468. American Ins. Co. v. Schmidt, 543, 609. Amer v. McDowell, 585. Ames V. New York Union Ins. Co. 253, 387, 432. Amesbury v. Bowditch Mut. F. Ins. Co. 152, 386, 387. Andree v. Fletcher, 669, 685. Andrews v. Ellison, 490. • V. Union Mnt. Ins. Co. i Angelrodt v. Delaware Ins. Co. 206, 447. Annapolis Co. 415. Cannell v. Phoenix Ins. Co. 296, 692. Carbis, ex parte, in re Croggon, 129: Carey v. Nagle, 487. Carpenter v. American Ins. Co. 692,. 716. -. V. Mutual Safety Ins. Co. 266. V. Providence Washington Ins. Co. 264, 418. v. Washington Ins.,Co. 130, 212. Carrington v. Commercial Fire & Marine Ins. Co. 571. Carroll v. Charter Oak Ins, Co. 45, 46, 136, 452, 576. Carrugi v. Atlantic Fire- Ins. Co. 51, 452. Carter v. Boehm, 172. V. Humboldt Fire Ins. Co. 135, 234, 355, 390. V. Niagara Dist. Mnt„ Ins. Co. 527. ■ V. Rocket, 370. Case V. Hartford Ins. Co. 281, 573. Casey v. Goldsmid, 230, 231. Caaaacia v. Phoenix Ins. Co. 507. Caston V. Monmouth Mut. F. Ins. Co. 102, 508. Catlin V. Springfield Fire Ins. Co. 146, 160, 403, 513, 667. Catron v. Tennessee Ins. Co. 630, 692. Chaffee v. Cattaraugus County Mut. Ins. Co. 242, 662. Chamberaburgh Ins. Co. v. Smith, 655, 656. Chandler v. Worceater Mut. F. Ins. Co. 403. Chapman t. Atlantic & St. Lawrence R. R. 352. Charleston Ins. & Trust Co. v. Neve, 613, 579. Charter Oak F. Ina. Co. v. Star Ina. Co. 312. Chaae v. HamUtou Mut. Ins. Co. 39, 196, 232, 638, 715. V. Washington Mut. Ina. Co. 266. 12 TABLE OF CASES. Chesbrough v. Wright, 549. Chieholm v. Provincial Ins. Co. 583. Christie v. North British Ins. Co. 190. Cinque Mars v. Equitable Ins. Co. 145. Citizens' Ins. Co. v. McLaughlin, 291, 616. F. Ins. Co. V. Doll, 296, 630, 554, 654. Mut Fire Ins. Co. v. Sortwell. 123, 125, 273,399,401. Mut. Ins. Co. of Mobile v. Lott, 628. City F. Ins. Ce. of Hartford v. Carrngi, lis, 314,456. V. Mark, 139, Y36. City of Davenport v. Peoria M. & F. Ins. Co. 200, 462, 485. of Worcester v. Worcester Mut. Fire Ins. Co. 118 Fire Ins. Co. v. Corlies, 181, 328, 590. Clapp V. Union Mut, Fire Ins. Co. 637. Clark V. Firemen's Ins. Co. 350, 12,1. V. Hamilton Mut. Ins. Co. 147, 177, 444. • V. Manufacturers' Ins. Co. 174, 468, 586, 710. V. Middleton, 305, 348. - V. New England Mut. F. Ins. Co. 60, 61, 408, 422. — V. Phffinix Ins. Co. 293', 303. — V. Union Mut. Fire Ins. Co. 244. - V. Western Ass. Co. 650. Clary v. Protection Ins. Co. 727. Clinton v. Hope Ins. Co. 83, 105, 380. Colburn v. Lansing, 748. Coles T. Iowa State Mut. Ins. Co. 400,401. Collins V. Charlestown Mut. Fire Ins. Co. 645, 734. Columbia Ins. Co. v. Cooper, 101, 317, 401, 584. . V. Stone, 228. Columbian Ins. Co. v. Lawrence, 163, 230, 349, 369, 403, 631, 632, 700. Columbus Ins. Co. v. Walsh, 306, 427, «68. Combs V. Hannibal Sav.