Batchelor v. People's Fire Insurance

40 Conn. 56 | Conn. | 1873

Foster, J.

The defendants issued a policy of insurance to Henry N. Wilson, covenanting, in consideration of a certain premium paid, to indemnify him against such loss or damage by fire as might occur to the property specified in said policy, not exceeding the sum insured, nor the interest of the assured in said property, from the 22d day of May, 1867, to the 22d day of May, 1868. That this was a valid contract, and that the liability of the defendants to said Wilson attached under it, according to its true legal intendment, does not seem to be disputed. On the 12th of July, 1867, all of said insured property was sold by said Wilson to the plaintiff in this suit; the lease of the hotel previously occupied by him, containing the same, was transferred to the plaintiff by said Wilson, and said policy of insurance was delivered to the plaintiff with intent to vest the same in him; no written assignment of said policy being made. On the 31st of October, 1867, tlie insured property was wholly consumed by fire and lost to the plaintiff, accidentally, without fault on his part, and not chargeable to any cause excepted by said policy. All the conditions and stipulations contained in said policy, to be kept and performed by the assured, were fully observed and kept by the plaintiff, up to said 31st day of October, 1867. The value of the insured property destroyed, over and above all insurances, was more than $3,000. The defendants refused payment of the policy because of the sale and transfer of the property ; denying that they were ever notified, or that they ever consented to the same ; the usual clause making the obligation void for such a cause, being inserted in this policy. A close examination of this record therefore, touching this question, becomes important.

On the 15th of July, 1867, three days after the purchase of this property and its transfer to the plaintiff, ho took the bill of sale, the assignment of the lease, and the policy of insurance, to Messrs. Curtis & Dresser, insurance brokers, through whom Wilson had obtained this policy of insurance; and informed them of the changes made, and requested them to have the policy so indorsed as to protect his interest. Said Curtis & Dresser, for the purpose of advising the defendants of said changes, and what was required, indorsed upon the policy a memorandum in pencil in these words: “ Privilege to use kerosene oil for lights. Loss, if any, payable to Charles Batchelor. Transfer.” The policy was then forwarded to the defendants, who duly received the same. The secretary wrote in the policy, “ July 19, 1867. Privilege to nse kerosene oil for lights ; loss, if any, payable to Charles Batchelor ;” and signed the same officially. He also affixed two twenty-five cent revenue stamps, and returned the policy with these additions to Curtis & Dresser, who delivered it to the plaintiff with the assurance that it had been so made as to protect his interest.

We think the evidence of what occurred, between the plaintiff and Curtis & Dresser, was, under the circumstances, admissible in the case; and probably no reasonable doubt can be entertained, in view of that testimony, but that the plaintiff, in good faith, supposed that every thing necessary to be done, to effect a change in the policy, had been done; and that the policy, in his hands, afforded the same protection to him, as, before the sale and transfer, it had afforded to Wilson, to whom it was originally issued. The question whether the defendants are to he held to this liability remains to be considered, and that must depend upon the judgment which the law pronounces upon the facts brought home to the notice of the .defendants; whether knowledge of the transfer of this property is to be imputed to them, and whether, by anything afterwards done, they renewed or revived that policy, so as to make it available to the plaintiff.

It is certainly to be regretted that the brokers who undertook to do this business did not, in terms, inform the defendants what had been done, and what it was desired that they should do. A single lino of writing, requiring perhaps a moment’s time, might have saved an expensive litigation, now protracted into years. But we must decide the case as it is presented.

Looking at the memorandum on this policy, which came-to the hands of these defendants on or before the 19th of July, 1867, by itself alone, as the defendants looked at it, or in connection with the facts and circumstances proved to have surrounded it, in effect it reads thus: “ Permission is wanted to use kerosene oil for lights; loss, if any, to be payable to Charles Batchelor, — he is now the owner of the property.” We cannot give effect to each of the words found in this memorandum, and each word must, if possible, be considered as significant, and extract from them, taken together, less than this amount of meaning. That it was the purpose of Curtis & Dresser, by their communication to the defendants, to express all that we now repeat, is directly found. The purpose of those who made the communication should not, perhaps, be disregarded, when considering it; but it would be unjust to the defendants to charge them with knowledge of that purpose or intent any further than such reasonable expression of it was given as to make it intelligible. That the purpose was to have the policy so changed that kerosene oil might he used for lights, and that the 1o- . any, should be made payable to Charles Batchelor, .. resent plaintiff, is sufficiently clear. There remains the word “ transfer,” quite too important a term to he passed over as without meaning. What effect shall he given to it? We find the same term used by the defendants themselves in this same policy. That instrument provides among other things, that “ if any change takes place in the title or possession of the property, whether by sale, legal process, judicial decr.ee, voluntary transfer or conveyance, without the consent of the company, written hereon, then &c., this policy shall he void.” With the aid which the use of this term in this clause of the policy affords us, when inquiring after its import, and that this source is a legitimate and proper one for the purpose cannot he disputed, we find no difficulty in deciding that the legal effect of this memorandum was to give notice to the defendants that the title to the property insured had been changed.

We are confirmed in the correctness of this opinion by the answer given to the insurance brokers by the defendants, by the indorsement on the policy made by their secretary, and by the return of the policy. The use of kerosene for lights, and the payment of loss, if any, to Charles Batchelor, the plaintiff, seems to have been specifically consented to. No notice in writing was taken of the word “ transfer,” but the policy was returned, and additional revenue stamps, such as were required by law for a contract of insurance, were affixed to the indorsement. These were significant acts. That the defendants did not mean to avail themselves of their option, and cancel the policy, as they might have done, is demonstrated by their returning it. They returned it with the intent, as we must suppose, that it should be delivered to the party who held tire interest in it. It was so delivered. He trusted it as an indemnity to himself, and the defendants must have anticipated that he would do so ; for the delivery, otherwise, was a deception and a snare. A party must he held to perform a contract as he allowed his co-contracting party to understand it; as he supposed that that party did understand it. Why did the defendants affix to their indorsement the additional revenue stamps ? If they intended simply to give their ■ assent to the changing of the person to whom the loss, if any, should be made payable, an event constantly occurring, the object being to give security to a mortgagee or other creditor, these stamps would have been entirely unnecessary. Corporations, no more than individuals, are prone to pay taxes not called for by law. But here was the word “ transfer,” over and above the request that the loss, if any, might be payable to Batchelor, and whether that word was understood as notice that the. property insured had been sold, or as a request that the policy should be transferred to Batchelor, the result was the same. In either event the existing policy was annulled, and by the act of June 30,1864, “ to increase duties.on imports and for other purposes,” a tax of fifty cents was imposed upon every policy of insurance, made or renewed, where the premium exceeds, as it did in this case, the sum of fifty dollars. Affixing these revenue stamps, and delivering the policy, under these circumstances, show plainly, as we think, how the defendants understood the memorandum in question.

The question of variance, though reserved in the finding, has not been pursued, and we suppose therefore that it is abandoned. We might perhaps say the same as to the proof of loss. At all events, we think the denial of the defendants of all liability to the plaintiff is a waiver of such proof. Norwich & New York Transportation Co., v. The Western Massachusetts Ins. Co., 34 Conn., 561.

We think the plaintiff is clearly entitled to recover, and we advise the Superior Court to render judgment accordingly for the amount stated in the finding.

In this opinion the other judges concurred.