2 F. Cas. 1007 | U.S. Circuit Court for the District of Eastern Virginia | 1877
I do not think that Ryon’s affidavit makes a sufficient case for a new trial on the facts. Even if it did, his own subsequent affidavit is in direct contradiction to it. The objection on the score of misdirection of the court deserves more s'erious consideration.
1st As to Shroff’s relation to the parties. That Shroff was not the agent of the insurers or of the insurers’ resident agents at Alexandria in general, is readily conceded. But in this case he contracted with Bassell for the insurance; he received the premium in person; which having been transmitted to the insurers in Philadelphia, directly or indirectly by him, a policy was returned through him, and the policy was by him delivered to the insured. Such is my recollection and understanding of the testimony. Now whether the insurers, or their resident agents, Wise & Co., or Shroff, or even Bassell himself, regarded Shroff as the agent of the insurer, he was nevertheless so in the eye of the law. A person may be the agent of another in law without intending it. He may be so, without that other person intending it. He may be so without either of the parties for whom he was the intermediary, intending it. See Ex parte White, (In re Nevill,) 6 Ch. App. 403. It is acts which constitute agency, and not intentions, or even disavowals, or denials, or even contracts of denial as that embodied in this policy. Shroff was by his acts the agent of the insurers in this matter, the agent pro hac vice; and he was so, notwithstanding the clause in the policy which he himself transmitted to the insured contracting that he was not. The agency had been established by his acts, and its functions performed before the unipartite policy was delivered.
2d. The second instruction was to the effect that the conditions of a policy indorsed in small type upon the back of it are not parts of it, to bind the insured, unless they are distinctly drawn to the attention of the insured at the time of the contract. Policies of insurance differ from ordinary contracts in this, that while ordinary contracts are signed by both parties, policies are unipartite in form, signed only by the insurer. In general they are transmitted to the insured after the agent and the insured have contracted; after the insured has paid a premium, and under circumstances which put it out of his power to object to such provisions inserted in it as were not in his mind or in the oral understanding which was had when he paid the premium; and policies are most of them loaded down with such provisions. My instruction seemed to be accepted by the defendant’s counsel at the trial, who contended before the jury that the words in the very first paragraph of the body of the policy, making the annexed conditions a part of the policy, effected a compliance with the instruction. I thought so myself; but it was a question of fact left to the jury, and the jury differed both from defendant’s counsel and myself. Union Mut. Ins. Co. v. Wilkinson, 13 Wall. [80 U. S.] 222. That the non-signing party to a contract, unipartite in form, ought to have notice of conditions not in the body of the contract is too obvious a principle of law to be disputed. The jury thought that the words of reference in the body of the contract did not convey this notice, and I do not see my way to setting aside the verdict on that account.
3d. As to whether boots and shoes, hats and caps, were embraced in the term “dry goods,” and whether that question ought to have been referred to the jury, I think the ruling of the court was right. If a term used in a contract is ambiguous, the court may resort to any rational and proper means of interpreting its meaning. It usually consults the lexicographers. If they are at fault, it resorts to other means of ascertaining tlio true purport of a word. At last, however, in case of doubt, it is the intention of parties to the contract which is the real point to be ascertained, and when this may lie interpreted by usage and custom, especially by the understanding of a term in trade, the question may well be left to a jury largely composed of intelligent merchants, ns this jury was, for their determination. In the case under consideration this course was peculiarly proper, and the court adheres to its ruling.
4th. That an insured person ought in general to be required to furnish a detailed statement of the particulars of his loss is not denied. If he shows by evidence that he was prevented from doing so by the consumption by the fire of his invoices, that requirement is satisfied. Dishonest men might endeavor to furnish the particulars from a fertile memory and invention, but it is an argument for the integrity of the insured person, if he declines this expedient, and confesses flatly his inability to furnish the particulars after his means of doing so are destroyed. I think there was in this case a waiver by Alfriend, general agent of the defendant’s company, of further proofs of loss than those furnished, and that the notification from the Philadelphia office, sent simultaneously to bringing the suit, came too late to enable the insured to supply the omission. The motion for a new trial is denied.
