
    Sarah H. Tebbetts vs. Hamilton Mutual Insurance Company.
    If an application for insurance is expressly made a part of the policy, and a warranty on the part of the insured, and contains a clause inserted after the printed questions by which the applicant “ covenants and agrees with said company that the foregoing is a correct statement and description of all the facts inquired for, or material in reference to this insurance,” and the by-laws, which are also expressly made a part of the policy, provide that u unless the applicant for insurance shall make a correct description and statement of all facts required, or inquired for in the application, and also all other facts material in reference to the insurance, or to the risk, the policy issued thereon shall be void,” the applicant must be held to warrant that all facts inquired for are correctly given, whether material or not; and the omission to mention several buildings within one hundred feet of the property insured, in reply to a question, “ What is the distance of said building from other buildings within one hundred feet, and how are such other buildings constructed and occupied ? Annex a ground-plan to the application ; ” will avoid the policy.
    Contract upon a policy of insurance. At the trial in this court, before Hoar, J., a verdict was returned for the plaintiff, and the defendants alleged exceptions. The facts are stated in the opinion.
    
      B. F. Butler & J. W. Perry, for the defendants.
    
      R. B. Caverly, for the plaintiff,
    cited Campbell v. Merchants & Farmers Ins. Co. 37 N. H. 35; Hall v. People’s Ins. Co. 6 Gray 185; Allen v. Charlestown Ins. Co. 5 Gray, 384; Fletcher v. Commonwealth Ins. Co. 18 Pick. 419; Elliott v. Hamilton Ins. Co. 13 Gray, 139; Liscom v. Boston Ins. Co. 9 Met. 205.
   Hoar, J.

The application upon which the policy of insurance was obtained contained this interrogatory: “ What is the distance and direction of said building (i. e. the building containing the property to be insured) from other buildings within one hundred feet, and how are such other buildings constructed and occupied ? Annex a ground-plan to the application.” The answer was, “ See diagram ”; and a description of the neighboring property, containing these words, “ East, Prescott Street.” Prescott Street was laid down on the diagram. On the opposite side of Prescott Street, and within the one hundred feet, were several buildings, and among them three wooden carpenters’ shops, which were neither represented on the diagram nor mentioned in the answer. The jury found that these buildings were not material to the risk; and the question presented for our decision is, whether the omission to disclose these buildings is a bar to the plaintiff’s recovery upon the policy ?

The application and the by-laws of the company are expressly made a part of the policy of insurance, a copy of the by-laws being appended to it; and the defendants rely upon the stipulations which they contain. By the 6th article of the by-laws, “ the application upon which a policy is founded shall be held to be a warranty on the part of the assured, and as absolutely a part of said policy and of the contract of insurance, as if it were actually incorporated therein in full.”

The 13th article of the by-laws provides, that, “unless the applicant for insurance shall make a correct description of and statement of all facts required, or inquired for in the application, and also all other facts material in reference to the insurance or to the risk, or to the value of the property, the policy issued thereon shall be void.”

The application contains an agreement that every question shall be fully and distinctly answered; and at the end of it are these covenants, among others : “ And the applicant covenants and agrees with said company that the foregoing is a correct statement and description of all the facts inquired for, or material in reference to this insurance.” “ The applicant further agrees that the misrepresentation or suppression of material facts shall destroy his claim for a damage or loss.”

It is also stipulated in the application, that “ if any interrogatories are not fully answered in writing by the applicant, it is assumed that the facts in relation to them are most favorable to the title and to the risk, and they are so construed in writing the policy.”

It is apparent, in the first place, that the answer to the interrogatory in the application does not “ make a correct description of and statement of all facts required, or inquired for in the application.” The interrogatory is not in terms confined to such buildings within one hundred feet as are material to the risk It embraces all buildings within the distance named, and inquires as to their construction and occupation. It appears, therefore, that the defendants directly required the information included in the terms of the question. Whether a jury might think it material to the risk could be of no consequence, if the defendants chose to make it a condition of the validity of the contract. Although policies of insurance are to be liberally construed, and in such a manner as to secure, if possible, the protection which they are designed to afford, it is not in the power of the court to disregard stipulations which the parties have expressly made. And if, taking the whole instrument together, it is obvious that the defendants have made the strict and literal exactness of the answers to certain questions a condition of the contract, and a warranty on the part of the insured, they cannot be deprived of the advantage thus secured. They have a legal right to say, “We choose to determine for ourselves what is or is not material; and to base our contract Upon such information as the insured is required to communicate in answer to specific interrogatories.” Davenport v. New England, Ins. Co. 6 Cush. 340. Miles v. Connecticut Ins. Co. 3 Gray, 580.

If the express warranty of the correct statement of the facts inquired for, according to the 13th article of the by-laws, were qualified by any other agreement or clause, as in the case of Elliott v. Hamilton Ins. Co. 13 Gray, 139, so that we could find upon the whole instrument that the parties intended to limit the extent to which the insured should be held responsible for the accuracy of the answers given, we should gladly apply the rule of construction which that case declares. But the cases are wholly different. In that case the insured agreed that the description of the property contained in his answers was correct only so far as regarded “the condition, situation, value, title md risk on the same.” Here that agreement is omitted, and in its place is inserted the explicit and stringent covenant, that “the applicant covenants and agrees with said company that the foregoing is a correct statement and description of all the facts inquired for, or material in reference to this insurance.” We think the only fair interpretation of this is, that the insured warrants that all the facts inquired for are correctly given, and all other facts material to the risk, even if not inquired for. The provision, that “the misrepresentation or suppression of material facts shall destroy his claim for a damage or loss,” cannot qualify the previous covenant, because it can have its full effect consistently with it. The answers might fail to give the information inquired for, and yet no material fact be misrepresented or suppressed. On the other hand, the answers might be complete and true, and material facts not embraced in the interrogatories might be incorrectly represented or purposely omitted.

The result to which we have come upon this part of the case renders it unnecessary to consider the other questions discussed in the argument, which arise on the report, and some of which are of considerable difficulty. The point decided is conclusive against the plaintiff’s right to recover. The verdict must be set aside, and a New trial gra/nted.  