Harmony Fire & Marine Insurance v. Hazlehurst

Babtol, C. J., delivered the opinion of the Court. At the trial of this cause, the Superior Court rejected the prayers on both sides, and gave instructions to the jury upon the law of the case. Two prayers having been asked by the appellant, the defendant below, of which the second was granted substantially and embodied in the Court’s instructions, the only questions presented on this appeal arise upon the first prayer of the defendant, and the instructions given to the jury. The suit was instituted upon a policy of insurance on the steamer Richmond, underwritten by the appellant.

The only matter in controversy grew out of alleged misrepresentations affecting the risk, as to the age and rate of the steamer which had been made by Cole, the insurance broker, in his application to the Phoenix Insurance Company, for insurance on the same steamer in behalf of another party, and which it is alleged the appellant acted on, in executing the policy now in question. ³⁸² The evidence was conflicting as to the truth of the alleged representations; no fraud or bad faith was charged against any of the parties concerned in procuring the policy. But the defence rested on the ground that the appellee was bound by the representations made by Cole, and if they were relied on by the appellant in executing the policy, and were found by the jury to be untrue in any particular which they might find to be material to the risk, the appellee would not be entitled to recover, although they were made in good faith. This defence is presented by the appellant’s first prayer. The general proposition as to the effect of a material misrepresentation in avoiding the policy was not denied; but the particular point presented by that prayer, upon which the dispute arose, was whether upon the evidence of the witnesses Bedell and Cole, the appellee was bound in law by the representations alleged to be untrue.

The evidence shows that Cole, an insurance broker in Baltimore, made an application to the Phoenix Insurance Company, of New York, for an insurance on the steamer Richmond, for and on behalf of Jacob Brandt, Jr. On that application was endorsed a description of the steamer stating her age, and her rate as “A, No. 1.” Those representations as to her age and rate, though made in good faith, were alleged to be untrue, and evidence was offered tending to prove that she was much older, and her true rate was lower, and the single question arising upon the prayer was whether the appellee was bound by the representations so made. There was no evidence that Carey, the appellee’s agent, made any representations whatever to Cole, concerning the age or rate of the steamer, when he applied to him to procure insurance, or that he authorized Cole to make any representations to the appellant, or that he, Carey, had any knowledge that any representations on that