(xROSSOUP, Circuit Judge,
after stating the facts, delivered the opinion of the court.
It is clear to us that at the time the contract for indemnity was entered into the defendant in error was engaged in a general business that included the tearing down of buildings preparatory to the construction of new ones;- that the scope of its business in this particular was well known in that community; that the purpose of defendant in error in talcing out the insurance was to obtain indemnity against losses hv accident in this as well as in other lines of its general business; that the pay roll, made the basis for the premium rate, was meant to include the employés thus engaged; and that the occupations described in the application were meant by the insured to include, and did include, tbe employés thus employed. This evidence was all submitted to the jury, and, though not specially commented upon in the instructions of the court, must have entered into the deliberations and finding of the jury. Upon this evidence, if, indeed, not upon the face of the policy itself, the jury, in our .opinion, was clearly justified in finding that the men injured — carpenters — were, at the time of the injury, engaged in one of the occu-*607pa I ions covered by the policy of insurance. The trial in the circuit court seems to have gone; off mainly upon the conception that clause 4 of the application, relating to the trade; and business of the insured, controlled the scope of the insurance; and that, unless the occupations of the men injured were 'within a fair interpretation of such clause, the plaintiff in error would not be liable. This clause of (he application does not, in onr opinion, give substantial scope and effect to the insurance. At most it is only a clause of representation or warranty. If, in that attitude, it deceived, or- was calculated to deceive, the insurance company, the policy might thereby be avoided; but the evidence submitted shows, and the jury, upon in-sinúe lions certainly in favor of the insurance company, found, that the term “general woodwork” was commonly understood to include the character of work upon which the eniployés injured were, at the time, engaged, and that at the lime the policy was taken out the slate agent of the insurance company, writing up the application, not only so interpreted it, but himself suggested it as a term broad, enough to cover every line of business in which the defendant in error was then engaged. Whatever, therefore, may be the technical meaning of clause 4, the court was well within the authority of Insurance Co. v. Mahone, 21 Wall. 152" court="SCOTUS" date_filed="1875-02-15" href="https://app.midpage.ai/document/insurance-company-v-mahone-88996?utm_source=webapp" opinion_id="88996">21 Wall. 152, 22 L. Ed. 593, and Insurance Co. v. Baker, 94 U.S. 610" court="SCOTUS" date_filed="1877-04-30" href="https://app.midpage.ai/document/new-jersey-mutual-life-insurance-v-baker-89520?utm_source=webapp" opinion_id="89520">94 U. S. 610, 24 L. Ed. 268, in holding that it was not necessarily unambiguous, and in submitting its meaning, as corn-, monly understood, and as agreed upon by the parties, to the jury, as one of the questions of fact in the case. We see no error, in this respect, either in the admission of the evidence objected to or in l he instructions applied by the court. Indeed, looking upon this clause as one of representation only, and not as the clause of the application that gave scope to the insurance, the charge of the court appears to have been much more favorable to the plaintiff in error than, under our view of this case, it ought to have obtained. If the court below mistook clause 4, — a merely incidental issue, — as we view it, for the substantial issue in the case, the injury arising therefrom affected the insured, and not the insurer. If an error, it did not prejudice the case of the plaintiff in error.
Nor was (here any error in admitting the receipt for the excess premium, and in submitting it as one of the facts to the jury. It was clearly pertinent to show' to what extent the parties understood the pay roll, as covering the employes injured in the accident.
On the whole case, after a careful examination of all the evidence submitted, we are of tin; opinion that the defendant in error was entitled to recover upon the policy of insurance, that the verdict of the jury is clearly sustained, and that there was no error in the trial in the circuit court that in any degree prejudiced the cause of the plaintiff in error. The judgment will be affirmed.
JENKINS, Circuit Judge
(concurring). The policy of insurance stales that it was issued in consideration of the application, “which is hereby made a part of this contract.” Effect should therefore be given to the application, not as a representation, but as a part of I he *608contract, limiting liability as therein expressed. It is clear from the evidence in the record thát the agent of the insurance company filled the blank application, and at the time agreed with the insured, touching the meaning of the expressions therein employed, that they should cover all the business in which the insured was engaged. Within the authority of Insurance Co. v. Wilkinson, 13 Wall. 222" court="SCOTUS" date_filed="1872-03-25" href="https://app.midpage.ai/document/insurance-co-v-wilkinson-88454?utm_source=webapp" opinion_id="88454">13 Wall. 222, 20 L. Ed. 617, Insurance Co. v. Mahone, 21 Wall. 152" court="SCOTUS" date_filed="1875-02-15" href="https://app.midpage.ai/document/insurance-company-v-mahone-88996?utm_source=webapp" opinion_id="88996">21 Wall. 152, 22 L. Ed. 593, and Insurance Co. v. Chamberlain, 132 U.S. 304" court="SCOTUS" date_filed="1889-11-25" href="https://app.midpage.ai/document/continental-life-insurance-v-chamberlain-92604?utm_source=webapp" opinion_id="92604">132 U. S. 304, 10 Sup. Ct. 87, 33 L. Ed. 341" court="SCOTUS" date_filed="1889-11-25" href="https://app.midpage.ai/document/continental-life-insurance-v-chamberlain-92604?utm_source=webapp" opinion_id="92604">33 L. Ed. 341, the contract would be construed in the light of such agreement, and would be held to cover all business of the insured. If, upon the face of the policy, that were doubtful, possibly, upon this evidence, and under these authorities, the court would have been justified in directing a verdict for the plaintiff below. At all events, the verdict was clearly in accord with the evidence, and could not well have been other than it was. The policy indemnified against loss from liability for damages through accidents to the servants of the insured while engaged in the occupations mentioned, “whose wages are included in the pay roll” upon which the premium was based. It was, therefore, proper for the plaintiff below to show payment to the insurer of the further premium which the contract required, based upon the pay roll. That such payment was made after the accident which is the subject of inquiry here, and was solicited by the agent of the insurer, and that' the pay roll included the wages of the servants injured at the time of the accident, does not affect the materiality of the evidence, although it was not proof of a waiver by the insurance company, since knowledge of the fact that the pay roll included such wages was not brought home to it. If the evidence was improperly used by counsel to urge upon the jury the notion of the waiver, objection to such use should have been made timely, and preserved in the record, or the court should have been requested specifically to charge the jury that no such waiver was shown. The .objection urged is, therefore, unavailing here; and, indeed, if the objection had been seasonably taken, and properly preserved, it is doubtful if we should not regard the failure of the court below to specifically instruct upon the objection as a harmless error, because the insurer was liable for loss upon the ground above considered.