Byers v. Farmers' Insurance Company.

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Insured) incumbered by any mortgage or otherwise?" A. "Yes, it is." Q. "If so, for what amount?" A. "$3,000." Q. "Is the property incumbered in any way?" A. “Incumbered by mortgages." Q. If so, state the nature of the same.' A. "Yes, mortgaged to two parties for $3,000." Q. "Is such property steadily profitable?" A. "Yes." The special findings of the jury upon these questions were as follows: 1. "Were these incumbrances on the premises affected by the insurance, at the time the insured, McMahon, procured the insurance sued for, to a greater amount than $3,000?" A. "Yes, $4,551; the whole amount of mortgages." 2. "Did the defendant or its agents at that time know that such incumbrance by mortgages exceeded $3,000?" A. "No." 4. "Were such premises teadily profitable at the time of the procuring of such insurance?" A. "No." 26. "Do rou find for the plaintiff or for the defendant in this action?" A. "We find in favor of the plaintiff." The court said: “In all *** the reported cases we have consulted, it has been decided as a question of law, that false representation of incumbrance by mortgage upon the property insured is material to the risk. Wood on Ins., §§ 158, 159, 160, 177, 195; Curry v. Com. Ins. Co., 10 Pick. 535; 20 Am. Dec. 547; Hayward v. Mutual Ins. Co., 10 Cush. 444; Patten v. M. & F. Ins. Co., 38 N. H. 338; Columbia Ins. Co. v. Lawrence, 10 Pet. 507. This court has repeatedly decided that such representations are material to the risk. Hinman v. Hartford Fire Ins. Co., 36 Wis. 159; Fuller v. Madison Mutual Ins. Co., id. 604. And in the latter case, the court, by the chief justice, uses the following language. And to that end it is important, not only that the insurer should know the amount of incumbrance on property when insured, but should have notice of subsequent incumbrances.' The intrin. sic and essential meaning of 'materiality to the risk' of representations by the insurer, in respect to the property to be insured, and the true test of such materiality, are, that such representations affect and influence the action of the insurer in taking or refusing the risk, or in the amount of premium to be paid. Chief Justice MARSHALL, in Columbian Ins. Co. v. Lawrence, 2 Pet. 47, defines this materiality so clearly, and in language so terse and yet so comprehensive, that it may well be adopted by the courts as the very best expression of it that can be made. Generally speaking, insurances against fire are made in the confidence that the assured will use all precautions to avoid the calamity insured against, which would be suggested by his interest. The extent of this interest must always influence the underwriter in taking or rejecting the risk, or in estimating the premium. So far as it may influence him in these respects, it ought to be communicated to him. Underwriters do not rely so much upon the principles as on the interest of the assured; and it would seem therefore to be always material that they should know how far this interest is engaged in guarding the property from loss.' This language has been once before quoted approvingly by this court, in the opinion of Mr. Justice LYON in Hinman v. Hartford Fire Ins. Co., supra; and the question as to the materiality of such representations should be at rest in this State, and the false representations here found by the jury, both as to mortgage incumbrances upon, and the profitableness of, the property insured, were material to the risk, relied upon by the company, and formed an inducement to the contract of the insurance, and avoid the policy."

To same effect, Schumitch v. Am. Ins. Co., Wisconsin Supreme Court, 1880.

In Glade v. Germania Fire Ins. Co., Iowa Supreme Court, June, 1881, the statement as to incumbrances upon the property was to the effect that they amounted to "about" $3,000. They in fact amounted, with accrued interest, to $4,425. Held, that the statement was a misrepresentation that avoided the policy, whether made in good faith or not. The court said: "It is true that in the case at bar the difference was made up, to a considerable extent, of accumulated interest. But that is immaterial. What the companies were entitled to know was, whether the property was imperilled by an incumbrance, because such property does not constitute as desirable a subject of insurance. If it was imperilled, it was of no consequence that the peril resulted largely from accumulated interest, unless we may say that a large accumulation of interest would tend rather more clearly to indicate that the insured was in a desperate condition. We come then to the conclusion, that under the facts shown and the cases cited, there was clearly a misrepresentation in a material matter. The next question is as to whether the misrepresentation had the effect to avoid the policy.

It appears to us that it had. We can hardly conceive, indeed, that such a misrepresentation could have been other than the result of bad faith, and not of mere ignorance; but in our opinion it was wholly immaterial as to whether it was or not. It is very common, we

Byers v. Farmers' Insurance Company.

believe, in making answers which are to become representations, in applications for insur ance, whether fire or life, to qualify the answers by the use of the word 'about.' It doubt less often happens that no other than such qualified answer can properly be given. We have never heard it suggested before, that the applicant, in making such answers, is bound to no accuracy or truthfulness whatever, provided only he does not act in bad faith. When an applicant gives a qualified answer, he virtually declines to give an unqualified answer. and in so doing he virtually declares that his information is not such as to justify him in giving an unqualified answer. But while this is so, he must be understood as declaring that his information is such as to justify him in giving the qualified answer which he does give."

One is not entitled to damages for injury to his fishery resulting from construe tion of a pier in a ver under license from the State.

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CTION for injury to a fishing right on the Delaware river. The point is sufficiently disclosed in the opinion. The plaintiff nad judgment below.

William Ward and Wayne McVeagh, for plaintiff in error.

Aaron Thompson and P. B. Carter, for defendant in error.

PAXSON, J. This case has been so thoroughly discussed in 11 P. F. Smith, 21, and 27 id. 310, that little more remains to be said. While the main point now raised was not expressly decided by either of the former cases, the principles by which it must be disposed of were clearly pointed out. It was held in Tinicum Fishing

Tinicum Fishing Company v. Carter.

Co. v. Carter, 11 P. F. Smith, 21, that the plaintiff below was not entitled to recover damages for the injury to his fishery resulting from the construction of a pier out into the river under a license from the port wardens of the city. "As the State," says Justice SHARSWOOD, "might itself have erected or caused to be erected the wharf and pier built by the defendants below, without any responsibility to the plaintiff for any consequential damages to his easement, or right of drawing his seine on the shore, so neither is the grantee or licensee of the State liable for such damage. As to him it is damnum absque injuria." This ruling is equally applicable to the erection and maintenance of the stone wall, which is the chief ground of the plaintiff's complaint. The Darby Meadow Company has the right under its charter to protect the meadows by the erection of walls to keep back the water, and if in doing so the plaintiff's rights of fishery are interfered with or even destroyed, he is without remedy. His damages, if any, are merely consequential, and the constitutional provision that compensation shall be made to the owner of property taken for public use, does not apply to such damages. Monongahela Navigation Co. v. Coons, 6 W. & S. 101. The meadow company having the right under its charter to construct the wall, it follows that if said wall had been constructed under the authority of, or license from the company, as a part of its system, the defendants would have a right to avail themselves of such authority or license as a defense to this action. Further, if the meadow company neither built, nor authorized its construction, yet if after the wall had been erected, they adopted and maintained it, and had continued to maintain it for more than six years prior to the commencement of this suit, it would be a complete answer to any claim for damages growing out of its construction.

It was certainly error to exclude from the jury evidence to show that in 1868 the fishery was utterly worthless. This error was cured to some extent subsequently by the admission of testimony of a similar character, and is referred to now to avoid misapprehension in the future.

The court below was called upon by the defendants' sixth and seventh points to say that if either by the erection of the pier, or from natural causes, the plaintiff's fishery had been destroyed, the verdict must be for the defendants. The learned judge affirmed these points, with the qualification, that the plaintiff's right must be absolutely obliterated; and that the destruction of the fishery VOL. XXXV-80

66

Reese v. Reese.

Nor was it a It was certainly

must be full and complete-not partial." Herein we think the learned judge fell into error. There was no question of the obliteration of plaintiff's right. That might continue long after its exercise had become impracticable or unprofitable. question of the absolute destruction of the fishery. sufficient for the defendant to show that it was worthless. The plaintiff was suing for damages, and the destruction of a worthless thing could have done him no injury. If the fishery could no longer be fished to profit or advantage, it was worthless. The fact that a few stray shad could be caught there occasionally amounts to nothing.

The first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth and sixteenth assignments of error are sustained. The judgment is reversed, and a venire facias de novo awarded. Judgment reversed.

REESE V. REESE.

(90 Penn. St. 89.)

Evidence-handwriting — expert opinion.

An expert, who has no knowledge of a handwriting in dispute, except from having seen the alleged penman write several times, and that only for the purpose of testifying, is incompetent to give an opinion thereof. (See note, p. 635.)

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CTION of debt. The opinion states the point. The plaintiff had judgment below.

Charles H. Pennypacker, for plaintiff in error.

H. H. Gilkyson and William B. Waddell, for defendant in error.

TRUNKEY, J. [Omitting other matters.] Rauch, while waiting as a witness for John Reese, saw him write several times-he wrote at request of his counsel. From knowledge of Reese's hand. writing, thus acquired, the witness was incompetent to testify his belief as to the genuineness of the signature in question. It has never been the practice in Pennsylvania to permit a witness to give