leading case of Carter v. Boehm, 3 Burrows, 1905, the question arose what effect, if any, was to be given to the opinion of a broker that certain statements in a letter within the knowledge of the insured should have been communicated to the insurer, and that if they had been the insurer would not have "meddled" with the insurance. The subject of insurance was a so-called fort and warehouse in the island of Sumatra, and the danger insured against was capture by the enemy. The facts stated in the letter, not communicated, were a report of an abandoned plan of the French in the previous year to attack the place, and the surmise of the writer that a similar plan might be carried out during the then current year. Lord Mansfield said of the evidence:

"But we all think the jury ought not to pay the least regard to it. It is mere opinion, which is not evidence. It is opinion after the event. It is opinion without the least foundation from any previous precedent or usage. It is an opinion which, if rightly formed, could only be drawn from the same premises from which the court and jury were to determine the cause, and therefore it is improper and irrelevant in the mouth of a witness."

Prior to this, in 1740, Chief Justice Lee, of the common pleas, had admitted as evidence the opinion of insurance brokers that contents of a letter concerning a ship should have been disclosed. Seaman v. Fonereau, 2 Strange, 1183. Lord Kenyon (Lord Mansfield's successor) held that commercial men might testify that, had a fact been known concerning the voyage of a ship, it would have made a difference of 15 per cent. in the premium, and that many underwriters would not have taken the risk on any terms, and expressed the opinion that such evidence was good evidence, admissible upon the same ground that the evidence of persons versed in arts and science was admitted on questions involving them. Chau rand v. Angerstein, Peake, 45. In Haywood v. Rogers, 4 East, 590, before Lord Ellenborough, evidence of insurance brokers as to the effect of certain facts upon insurance premiums was admitted without objection, but it was not given any weight by the court. In Littledale v. Dixon, 1 Bos. & P. (N. R.) 152, the common pleas court considered evidence (admitted, so far as appears, without objection) that the knowledge of the safe arrival of two ships which had left the same port after the one insured would not vary the premium actually demanded. In Berthon v. Loughman, 2 Starkie, 258, Mr. Justice Holroyd, of the queen's bench, held that, upon the question of the materiality of a fact, it was competent to ask an insurance broker what effect its disclosure would have among underwriters generally to increase the premium, but not what the witness would do in a particular case. In the preceding year, Chief Justice Gibbs held that a rumor. if material, ought to be communicated, but held that the opinion of underwriters as to whether the rumor, or any other fact, was material, was inadmissible, stating that Lord Mansfield and Lord Kenyon had discountenanced this kind of evidence. Durrell v. Bederley, Holt, N. P. 286. With respect to Lord Kenyon, as we have seen, he was hardly accurate. In Rickards v. Murdock, 10 Barn. & C. 527, Lord Tenterden, of the queen's bench, was in accord with his colleague, Mr. Justice Holroyd, and held that underwriters

might testify that a fact not disclosed was material; and his ruling was not disturbed by the full court. In Elton v. Larkins, 5 Car. & P. 392, before Tindal, C. J., evidence of underwriters was admitted to the point that time of the vessel's sailing was material, and that, had it been known, the policy would not have been issued. In this case, Wilde, sergeant, stated that such evidence, in spite of Lord Mansfield's objection, seemed to have crept into competency. In Chapman v. Walton, 10 Bing. 57, a case heard by the court of common pleas in banc, the question was somewhat dif ferent. It was on an issue whether an underwriter had been derelict in altering insurance under instructions. The evidence of underwriters was held competent upon the point of what a reasonably skillful and prudent underwriter would have done. In admitting the evidence, however, Chief Justice Tindal, of the common pleas, relied on Justice Holroyd's decision in Berthon v. Loughman, and expressly dissented from the view of his predecessor, Chief Justice Gibbs, in Durrell v. Bederley. In Quin v. Assurance Co., Jones & C. 316, the Trish exchequer chamber followed Rickards v. Murdock and Berthon v. Loughman, and admitted evidence of the secretary of the insurance company that knowledge by his company of an undisclosed fact would have raised the rate of insurance premium it would have demanded. In Campbell v. Rickards, 5 Barn. & Adol. 840, precisely the same question came before the court of queen's bench in banc which had been before that court in Rickards v. Murdock. The decision in the latter case was overruled, and it was held that the evidence of underwriters upon the materiality of the undisclosed fact was not competent. The case is put on the authority of Lord Mansfield and Chief Justice Gibbs, and the then recent decision of the common pleas in Chapman v. Walton is not referred to. This is the last English case where the question has been raised and discussed. In Ionides v. Pender, L. R. 9 Q. B. 531, evidence of underwriters that overvaluation of the cargo was a material fact to be known, that in such a case the risk was considered speculative, that some underwriters would not take such risks, and others would take it only at an advance in the premium of from 25 to 30 per cent., was admitted without objection, and seems to have formed one of the chief grounds for the judg ment of the court, delivered by Mr. Justice Blackburn. It may fairly be said, from this review of the English cases, that the question is an open one. See 1 Smith, Lead. Cas. Eq. 572. Even in those cases where evidence of underwriters has been admitted, no distinction has been recognized, except, possibly, by Mr. Justice Holroyd in Berthon v. Loughman, 2 Starkie, 258, between the individual opinions of such witnesses as to the materiality of undisclosed or misrepresented facts, and their statements, based on usage, of the effect which a knowledge of such facts would have among underwriters generally, upon insurance premiums.

In this country, though all the cases are not easily reconciled, it is not so difficult as in England to reach a satisfactory result. first, in marine cases, it was generally held that underwriters

might be asked the direct question whether the facts undisclosed were material to the risk. Mr. Justice Washington permitted it in two cases. Moses v. Insurance Co., 1 Wash. C. C. 386, Fed. Cas. No. 9,872; Marshall v. Insurance Co., 2 Wash. C. C. 357, Fed. Cas. No. 9,133. In McLanahan v. Insurance Co., 1 Pet. 170, the question was whether the time of sailing was material to the risk, as a matter of law; and, in pointing out why it was a question for the jury, Mr. Justice Story said:

"The material ingredients of all such inquiries are mixed up with nautical skill, information, and experience, and are to be ascertained, in part, upon the testimony of maritime persons, and are in no sense judicially cognizable at law. The ultimate fact itself, which is the test of materiality,-that is whether the risk be increased so as to enhance the premium,-is in many cases an inquiry dependent upon the judgment of underwriters and others who are conversant with the subject of insurance."

In Hawes v. Insurance Co., Fed. Cas. No. 6,241, the issue was whether the failure to disclose that a vessel was aground was a material fact, and an underwriter was called to give evidence. Justice Curtis said:

Mr.

"I do not allow you to ask the witness what he himself, as an underwriter, would have done, but whether, from his knowledge of the business, he is able to state that the facts in question would or would not have an influence with underwriters generally, in determining the amount of the premium. Here the inquiry is, in substance, whether the market price of insurance is affected by particular facts. If the witness, being conversant with the business, has gained, in the course of his employment, a knowledge of the practical effect of these facts, or similar facts, upon premiums, he may inform the jury what it is."

The question soon arose in fire insurance cases. In Merriam v. Insurance Co., 21 Pick. 162, where the issue was whether a condition of the policy that no alteration while the policy was current should be made in the building insured, which would increase the risk of fire, was violated, the court held that the alteration must have been such that a higher rate of premium would have been demanded for insurance of the building in its altered form than before. With this as a test of materiality, which, as we have seen, was approved by Mr. Justice Story in McLanahan v. Insurance Co., supra, the same court, in subsequent cases, has established a distinction, to be enforced in the use of insurance expert evidence on such an issue, which was hinted at by Mr. Justice Holroyd in Berthon v. Loughman, 2 Starkie, 258, and by Mr. Justice Curtis in Hawes v. Insurance Co., Fed. Cas. No. 6,241. It is clearly stated by Mr. Justice Gray in Luce v. Insurance Co., 105 Mass. 297. There the issue was whether risk of fire was increased by leaving a house unoccupied. Following decisions of the same court in Mulry v. Insurance Co., 5 Gray, 541, and Lyman v. Insurance Co., 14 Allen, 329, the court held that insurance experts could not testify that it did increase the risk, because it was only a matter of common knowledge. The learned justice continued, however, as follows:

"But whether such a change in the occupation is material to the risk might also be tested by the question whether underwriters generally would charge a higher premium. Merriam v. Insurance Co., 21 Pick. 162. That being a

matter within the peculiar knowledge of persons versed in the business of insurance, testimony of such persons upon that point is admissible.”

Cited in support of this are the remarks of Justice Story and of Justice Curtis above quoted. The distinction stated in Luce v. Insurance Co. has been approved by the same court in the late case of First Congregational Church of Rockland v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475, 33 N. E. 572, and has been recognized by courts of other states. Insurance Co. v. Rowland, 66 Md. 236, 244, 7 Atl. 257; Insurance Co. v. Gruver, 100 Pa. St. 266. Such a distinction would also seem to be the basis of the ruling in Martin v. Insurance Co., 42 N. J. Law, 46. In the later New York fire insurance cases, though they are hardly to be reconciled with Insurance Co. v. Cotheal, 7 Wend. 72, it seems to be ruled that insurance experts may be asked directly whether the fact in question would increase the risk. Hobby v. Dana, 17 Barb. 111; Cornish v. Insurance Co., 74 N. Y. 297; Leitch v. Insurance Co., 66 N. Y. 102. Reliance is had by the New York courts upon the opinion of Chancellor Kent, expressed in his Commentaries (volume 3, p. 285), that such evidence is admissible. The same ruling is made in Kern v. Insurance Co., 40 Mo. 19, and in Mitchell v. Insurance Co., 32 Iowa, 424, and Russell v. Insurance Co., 78 Iowa, 216, 42 N. W. 654. In Schenck v. Insurance Co., 24 N. J. Law, 451, it was held proper to ask a fireman of 10 years' experience whether a second story to an L increased the risk. In Brink v. Insurance Co.,

49 Vt. 442, it was held that the owner of a sawmill, who had altered it, might testify that in his opinion the alteration did not increase the risk of fire. And in Daniels v. Insurance Co., 12 Cush. 416, an insurance expert was allowed to state that the erection of a partition did not increase the risk; but this is not to be harmonized with the later Massachusetts cases. The great weight of authority in this country, however, is against the view that an insurance expert may be asked his own opinion whether the undisclosed or misrepresented facts were material to the risk. In addition to the Massachusetts cases above cited, there is a most satisfactory discussion of the subject in Insurance Co. v. Harmer, 2 Ohio St. 455, and in Hill v. Insurance Co., 2 Mich. 481. Other cases to the same effect are Schmidt v. Insurance Co., 41 Ill. 295; Joyce v. Insurance Co., 45 Me. 169; Cannell v. Insurance Co., 59 Me. 582; Thayer v. Insurance Co., 70 Me. 539; Kirby v. Insurance Co., 9 Lea, 142. In State v. Watson, 65 Me. 74, the issue was, in a prosecution for arson, whether it could be expected that fire from one building would be communicated to another building, some distance away from the first. It was held improper to admit evidence of insurance experts on this question. And a similar ruling was made by the supreme court of the United States in Railroad Co. v. Kellogg, 94 U. S. 472,-an action for damages for burning a warehouse by locomotive sparks. The issue was whether the communication of fire from a pile of lumber to the warehouse and other buildings might have been reasonably anticipated, and insurance experts were called. Their evidence was held inadmissible; and Mr. Justice Strong, in delivering the opinion of the court, cites the language of Lord Mansfield in Carter v. Boehm, of Chief Justice Gibbs in Durrell

1

v. Bederly, and of Lord Denman in Campbell v. Rickards, in support of this conclusion. It is in accord with the better reason, also, to exclude opinions of insurance experts upon the point whether an undisclosed fact was material to an insurance risk. If it requires scientific knowledge or peculiar skill to trace the possible causal or evidential connection between the fact claimed to be material and the loss or death insured against, then, of course, the testimony of those learned in the necessary science, or trained in the particular craft, should be furnished to the jury, to enable them properly to estimate the weight which a reasonably prudent insurer would naturally give to the fact, in his calculation of chances. But where the calculation of the chances involves a consideration only of facts of everyday life, of the motives of men living in the same community with members of the jury, and of those ordinary physical and natural causes of which every man is presumed to have an understanding, it is difficult to see why an insurance examiner should be permitted to influence the jury by giving his sworn opinion on the very issue which they are assembled to try, and of which they are presumed to have the same opportunities upon which to found a reliable judgment as he. It is true, he may have had occasion, in his business, to consider and weigh facts of this character, for this purpose, much more frequently than the jury, but that does not render his opinions on the facts competent evidence. It is the business of judges and lawyers to consider and estimate the value of evidence, and for their own use they doubtless formulate in their minds certain rules for weighing and sifting facts and motives, and by such practice may have acquired great skill in divining the truth; but no one would say that their judgment of the facts of a case could be given in evidence before a jury to assist the jury in its deliberations.

The better authorities, however, seem to sustain the rule that the insurance experts may testify concerning the usage of insurance companies generally in charging higher rates of premium or in rejecting risks, when made aware of the fact claimed to be material. The distinction between this and the rule just discussed may seem at first a close one, but on consideration it app ars to be sound. It may be asked why, if one insurance man of long experience cannot give his individual opinion that a fact is or is not material to a risk, should it be competent for him to state the opinions of a great many insurance men on the same question? A fact is material to an insurance risk when it naturally and substantially increases the probability of that event upon which the policy is to become payable. Materiality of a fact, in insurance law, is subjective. It concerns rather the impression which the fact claimed to be material would reasonably and naturally convey to the insurer's mind before the event, and at the time the insurance is effected, than the subsequent actual causal connection between the fact, or the probable cause it evidences, and the event. Thus, it is by no means conclusive upon the question of the materiality of a fact that it was actually one link in a chain of causes leading to the event. Watson v. Mainwaring, 4 Taunt. 763; Jones v. Insurance Co., 3 C. B. (N. S.) 65; Rose v. Insurance Co., 2 Ir. Jur.