The contract is to be construed according to the laws of Massachusetts, and the plaintiff's motion for a rehearing *Page 316 Davis v. Insurance Co., 67 N.H. 218, is denied for the reasons stated in the opinion in that case.
Mass. P. S., c. 119, s. 181, provides in substance that no misrepresentation in obtaining a policy shall avoid it unless "such misrepresentation is made with actual intent to deceive or unless the matter misrepresented increases the risk of loss." One of the questions tried was whether the insured suppressed any material fact, within the meaning of this statute, in her application for insurance. The defendants claimed that she did, by not informing them of the existence of a railroad track in close proximity to the insured premises, which increased the risk of loss by fire.
The object of the statute in regard to misrepresentations of the assured avoiding a policy, was to make only such misrepresentations a good defence as concealed some matter which actually increased the danger of the property's burning. It refers to the actual physical risk of its taking fire. If the matter concealed increases this risk of fire, it is a good defence. The risk of loss spoken of in the statute does not refer to the question of the ultimate money loss of the insurance company, nor whether there is any third person from whom they might recover damages in case of loss. The question for the jury was whether the concealment of the existence of a railroad near the insured property was the misrepresentation of a material fact that increased the physical hazard of a fire. The fact that the insurance company might recover damages from the railroad company could have no bearing on this question. If the risk of the property being destroyed by fire was actually increased, yet the insurance company might be unable to prove that the fire was caused by a locomotive engine, or the railroad company might not be good financially, and the expense and trouble of collecting the amount of the loss from the railroad company might be very considerable. Notwithstanding the statutory right of the insurance company to recover the amount of their loss from the railroad company, yet, considering the uncertainties attending its enforcement, they might wish to decline to insure the property in view of the increased risk from fire.
The admission of the statute making railroad companies responsible in damages for fires communicated from their engines could not aid the jury in determining the real question, which was whether the concealment of the existence of a railroad close to the property was the misrepresentation of a matter which increased the risk of the property taking fire. It was not competent evidence on that question. Its admission in evidence before the jury would have a tendency to confuse and mislead them, and make them think the question for them to determine was not whether the concealment of the existence of the railroad *Page 317 increased the risk of fire, but whether it increased the risk of money loss.
This conclusion renders it unnecessary to consider the other questions raised.
Exceptions sustained.
All concurred.