Rathbone v. City Fire Insurance

Butler, J.

The testimony of Fuller relative to the waiver of defects in the preliminary proofs was clearly admissible. The plaintiff was entitled to prove that waiver, and by any evidence which tended to prove it. An' admission of the company made by their general agent while acting as such, and in respect to the particular loss and controversy, that it *204 was only the quantity and value of the cider which the company disputed, was pertinent and important, whether made directly to the plaintiff, or to the agent who was employed by the plaintiff to prepare the preliminary proofs and present them on his behalf. Moreover the evidence was offered in connection with other evidence which is not stated. For aught that appears it may have been evidence to show that the general agent was expressly authorized to make the admission to the plaintiff through Mr. Fuller, for the purpose of narrowing the controversy.

2. Where a motion merely shows that a party claimed that certain evidence was not admissible in any way to affect the terms of a written instrument, without showing that the claim was made when the evidence was offered; or that the evidence was let in subject to exception, and the claim was subsequeiitly made that it should be excluded ; or that the court were requested to charge as to its effect or the consideration to be given to it, no question is raised which the court is bound to consider. And such is the import of the motion in this case. It does not appear when or in what way the claim was made, or what disposition the court made of it. Nevertheless, no injustice was done if the evidence was in fact regularly objected to and admitted, or a request to charge the jury that the evidence was not to be considered was disregarded by the court. The plaintiff sought permission orally to change the place of storage, and of course the risk. The conditions of the policy in respect to a description of the new risk in a written application or survey were waived, and there is no representation of it in or upon the policy; and it was competent for the plaintiff to show what the new risk was when taken; that it was fully though orally represented to the defendants, and known to them; and if inconsistent with any condition of the policy, that the condition was waived. None of these affected the terms of the written policy. The cases read and relied on at the bar to this point, are cases where there was a written representation of the risk, either in the policy or application, and parol evidence of a usage, or of a cotemporaneous parol agreement, or that the defendants had *205 knowledge respecting an element of risk not included in the representation, or that an element was left out by their agent though known to him, was holden inadmissible. None of these cases apply.

8. We are satisfied that the defendants were not entitled to the instructions requested. As to all the articles named in the request except the wine in casks, it was abstract, and the court was not bound to dissect and charge the jury in respect to any part of it. Cowles v. Bacon, 21 Conn., 451 ; Marlborough v. Sisson, 23 Conn., 44 . The point, and the only real point made on the trial and which could be raised by the request, was, that the policy was void by reason of the fact that wine in casks was stored in the barn at the time of the fire, and was not, in terms, agreed to in the indorsement.

The defendants undertook to stand upon a defense which possibly they might have made if the cider had remained in the original place oí storage and the wine had afterwards been stored with it. W e say possibly, for it is questionable whether, upon a just and reasonable interpretation of this policy, such storage would have constituted a defense, if the dwelling house and its contents had been consumed. There is a condition in it “ that if, after insurance is effected, either by the original policy or a renewal thereof, the risk shall be increased by any means whatever within the control of the insured, or if such building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of issuing the policy, such insurance shall be void and of no effect; ” but that condition would not have been broken by storing the wine in the dwelling house after the issuing of the policy, because “ wine in casks ” is not hazardous to the building, and is in substance declared not to be in the policy ; and of course could not increase the risk to the building, or its contents. The defendants rely however on another condition, which is in these words : — “ If the premises shall at any time after the making of, and during the time this policy would otherwise continue in force, be appropriated, applied or used, to or for the purpose of carrying on or exercising therein any trade, business or vocation denominated hazardous or extra- *206 hazardous, or specified in the memorandum of special hazards annexed to this policy, or for the purpose of storing, selling or keeping for sale therein any of the articles, goods or merchandize denominated hazardous or extra-hazardous, or included in the memorandum of special hazards, except as specially provided for or hereafter agreed to by this corporation in writing to be added to or indorsed on this policy, then, &c., this policy to be of no effect.” The purpose of this condition it is claimed is substantially the same as the other ; but it was obviously inserted with more immediate if not sole reference to buildings insured, and with a view to specify particularly what should be considered an increase of the risk. The claim of the defendants in substance is, that although they could not defend on the ground of a breach of a condition general in its terms, and covering every thing which could actually increase the risk, yet they can defend under another condition, which, by a reference to the schedules, makes the policy void if an article be stored on the premises which they concede in the policy does not in fact increase it. Was that condition inserted for any such purpose ? Does the insured when he takes such a policy know, or suppose, that he is bound to avoid storing in his building any articles which are in danger of injury by removal only, and do not endanger the building ? Is it so that a policy issued upon a dwelling house, with this condition in it, is avoided, if the owner is a shoemaker and stores a case or two of boots and shoes in it; or a clothing contractor, and stores a few cases of made or unmade garments in it; or an officer, and stores in his dwelling house, pending the litigation, a lot of hardware which he has attached ; or a farmer, and in accordance with a general custom stores his threshed grain in his garret ? It is not to be presumed that the company would impose conditions which would unnecessarily restrict the insured in the fair and reasonable use of the premises ; or that the insured would accept such a policy if he so understood it. Nor are we for a moment to suppose that the intelligent and upright officers of this company intended to insert a condition which would entrap those whom they insured, by leading them to suppose that so long *207 as they carefully abstained from every thing which could in fact increase the risk, in conformity to the condition first recited, they did all which honesty, fairness and the policy required of them. But are we on the other hand to believe that they have intentionally inserted a condition for the purpose of preventing an increase of the risk, by prohibiting that which could not increase it ? Doubtless the parties have a right to make their own contracts. The insurers have a right, and it is their duty, to insert such conditions as experience and the known carelessness and depravity of men require, to secure an honest carefulness and prevent a dishonest loss ; and if they did in fact make a contract which forbade the storing of articles hazardous only because liable to be injured in l’emoval, it must be sustained. But did the parties intend to make such a contract, and did they make it? Was that their mutual understanding of it ? The schedules are divided into those which do and those which do not increase the rate on the building, and of course those which are and those which are not hazardous to it. Why that division ? The rates are the same, and it is not easy to discover a reason for it, unless it was for the purpose of excepting the articles not hazardous to the building from the schedule of articles which are declared to be thus hazardous and to which the condition was intended to apply. Is it not the fair interpretation of the condition in question, when read in connection with the other conditions and terms of the policy, and with a reasonable regard to the purpose of the parties respectively, that when it speaks of any of the articles denominated hazardous, &c., it refers to the articles denominated hazardous to the building, and does not refer to those which are apparently excepted from the schedule. It is not necessary to decide this question, and we do not intend to decide it; but this class of contracts is of great importance, the interests involved are immense, and it is exceedingly important that the conditions of the policies should be consistent with the purpose of the contract, and adapted to the intelligence of all classes of men, and without any apparent unfairness of purpose, or danger of injustice ; and we can not pass it over with a seeming acquiescence in *208 the applicability or construction of the condition claimed by the defendants.

Waiving a decision of the foregoing question, and assuming the construction claimed by the defendants to be the correct one, still they were not entitled to the instruction prayed for, and if the charge of the court had been erroneous they would not be entitled to a new trial, because substantial justice was done by the verdict, and no other result could be sustained on the conceded facts.

First, the same testimony which showed that the wine was in the barn at the time of the fire, showed that it was there when the cider was removed to it, and that the defendants knew it. It is not therefore the case which the defendants assume it to be. There was no storage of wine in the premises named in the policy, after it was issued, within the prohibition of the condition; but the taking of a new and distinct risk, in another and different place, although on the same article. It was a short way of making a new contract of insurance. In Benjamin v. The Saratoga County Mutual Fire Insurance Company, (17 N. York R., 415,) the plaintiff obtained an insurance in behalf of a company, in his name as agent. He had at the same time a mortgage on the property and foreclosed it. That changed the title and avoided the policy. The plaintiff wrote to the defendants and asked that the policy should be continued in force for his benefit, and they by letter assented to it. The court held that the effect of this was to create a new contract in a short way between the parties, and that the policy continued in force under the new agreement. So here the plaintiff changed the location of the cider, and made a new risk, and that avoided the policy, for by its terms he warranted that it should remain in his dwelling house in Norwich. The insurance company with full knowledge of the elements of the new risk, agreed that the policy should embrace it and continue in force, and indorsed such agreement on the policy. They thereby took the new risk, precisely as they took the old one, as it was when taken, and must abide it as taken. Nothing can be clearer than that when a company take a risk without requiring any represen *209 tation of its elements, either in a written application or survey, or in the policy, they waive the condition requiring such a description and take the risk as it is; and can make no defense because of any element of which they had knowledge, and which was not misrepresented to them. Bennett v. Saratoga County Mutual Ins. Co., 5 Hill, 192 ; Beebe v. Hartford County Mut. Ins. Co., 25 Conn., 51 . If then it be admitted that the condition in question applies to the new premises, and of course new risk, there has been no breach of it, because the storage of the wine in casks was an element of the new risk when taken, and there was no subsequent storage of any forbidden article with it. Moreover, the indorsement in fact made upon the policy, with knowledge that the wine was stored in the barn, and was to be continued there, was an agreement in writing that it might be continued there, and a compliance with the condition. “ It is a general rule that a writing contains all that may be fairly implied from it; ” and where there is no written representation, but an agreement in writing in general terms to insure, or to continue an insurance in force, in a new locality, it is by implication a part of the agreement that every existing element of the risk of which the insurer has knowledge, or which is not unlawfully concealed from him, may remain as it is. This indorsement therefore imports all that the condition, if applicable, required under the circumstances.

Again, after the removal of the cider to the barn, and while the wine in casks was stored there, and with full knowledge of the fact, the defendants took a new and additional amount on the same cider. If any forfeiture could be incurred it had then been incurred, and taking the additional amount was not only binding as to the additional $100 thus taken as an original insurance, but a clear waiver of any prior forfeiture as to the $200 previously insured. Moreover, in that indorsement the policy is expressly reaffirmed as to the $200, and continued in force for the whole sum of $300. The defendants therefore have in fact twice agreed in writing by indorsement that the wine might remain there, and assumed the risk as it was, with full knowledge, and without requiring *210 any written representation, or making objection on the ground of the want of it.

We think it obvious from the foregoing considerations that the defense was groundless and that the defendants were not entitled to a verdict, upon the issues made, whatever the charge of the judge. But that charge did not do the defendants injustice. If it was. true, as the plaintiff claimed, that the defendants agreed that the plaintiff might store, the, cider with the wine, and to make such indorsement upon the policy as was necessary to continue it in force notwithstanding such storage, and had the policy for that purpose, it was their duty to do it, and the agreement was a waiver of the condition. which required it until the duty was performed.

A new trial is not advised.

In this opinion the other judges concurred.