25 Wis. 291 | Wis. | 1870
We shall not attempt to determine'how far a plaintiff in an action on a policy of insurance is bound to introduce proof, in the first instance, of a continued compliance on his part with all the provisions in the policy, in order to avoid a motion for a nonsuit. It has been said by a writer on this subject, who refers to authorities upon the point, that he must,. in the first instance, prove a compliance “with express warranties and conditions precedentP 2 Phillips on Insurance, p. 653. But these companies have adopted the practice of inserting a provision that every thing said by the
But in this case the motion for a nonsuit was overruled. And the defendant assumed the burden ot showing a non-compliance by the plaintiffs with all the .conditions of the policy'in respect to which a non-compliance was claimed. Both parties introduced fully their evidence upon this subject. The question then is, whether, upon the case as it was finally submitted to the jury, the appellant has any thing to complain of. It is a familiar rule, that even when, strictly speaking, a motion for a nonsuit ought to have been granted for some defect in the proof, yet, if it is overruled and the defect subsequently supplied, there is no ground for reversal.
The principal reason why the company denies its liability is, the alleged fact that the assured did not comply with the undertaking to keep a night watchman, and to keep the factory running, and to have the pump
The answer to the question, “During what hours are the premises worked ?” was, “Prom 6 a. m. to 7 p. m. ; sometimes from 7 p. M. to 6 A. M.”
To the question, “ Have you a night watchman always on duty?” the'answer was, “We have.”
It was also stated that the building was not left alone at any time after the watchman went off duty in the morning until he returned at evening.
It was said, also, that there was a good force pump on the premises expressly for putting out fire, and that it was “at all times in condition for immediate use.™ Also, that it was tried every two or three days to know if it was in order.
It may be true, as claimed by the appellant, that, according to the current of authority, these statements would be held to be continuing warranties that the same state of things should continue during the life of the policy. But it has always seemed to me that to apply'that rule to cases of this character was to impose on the transaction a construction which it does not fairly or reasonably bear, and to make a contract for the parties which they did not make for themselves.
■Both the questions and answers in such cases purport to relate only to the then existing condition of things. Notwithstanding this, it is entirely reasonable and just to say, that, in respect to those things that, according to the usual course of the business, are permanent and continuing, the parties intend to agree that they shall be kept in the same condition. The assured undertakes to make no' changes in the condition of the premises or
But it seems to me a stretch of construction to say that the assured undertakes, by such answers, to continue to use the property, through the life of the policy, in the precise manner, then indicated, though such continued use would be contrary to the well-known usage and nature of the particular business.' Thus, suppose a policy should be taken in the summer for one year on a steamboat used in navigation? Suppose a similar class of questions should be put and answered? The owner is asked, “During what hour^ is the boat run?” He answers, “It is run night and day.” He says that a regular watch is kept at all hours of the night; that there are pumps worked by the engine, ready at all times for immediate use to extinguish fires; and that a dozen hands are employed on the boat. Would there be any reason in holding that this was an undertaking by the assured that the same condition of things should exist through the winter months, when the boat was not used, but was frozen in the ice of some river? Manifestly not. It would be absurd to assume that the parties so intended or understood.
The same thing seems equally true here. It was proved that the factory was never run in the winter. This fact was well known to the agent of the company, and the assured knew that he understood it. It is true of most of the mills that are engaged in the great lumbering business of this state. When, therefore, a policy is taken out upon one of these mills, or a factory like this, while it is running, and questions are asked and answered truly as to the description of the property and the mode in which it is then used, it would be as unreasonable to say that they amounted to a warranty by the assured that the same state of things should continue during the winter months, when according to the usual custom and course of the business the property was not used at all, as it would be to say so in the case
Upon this subject I have given my own views, as, in consequence of other facts appearing in the case, it became unnecessary for the court to decide the question. There seems to be a conflict of authorities upon the point, and there are certainly some very respectable ones which would sustain the construction that I have suggested ought to be put upon this policy. See Schmidt. Insurance Co., 41 Ill. 295, and cases cited.
Those other facts are, that the whole truth in relation to these matters was fully disclosed to the agent of the company by the assured, and that he himself prepared the papers, filled up the application, and wrote down such portions of the answers as he considered material or important. The assured explicitly informed him that the night watch was kept, and the pump examined and kept in readiness for use, only when the mill was running. This fully appears by his own testimony, and he says, probably with good reason, that he did not write that down in the answers, because he considered that the risk was much less .when the factory was not running, even without any of these precautions, than it was when running with them all.
The recent cases upon this subject fully sustain the position, that, upon this state of facts, the company is responsible for the accuracy and omissions of its agent, even without any express undertaking to be so, and that it cannot avoid liability by reason of any discrepancy between the real facts as disclosed to him and his presentation of them in the papers. The tendency of modern decisions has been strongly to hold these com
Some of these cases are directly to the effect that, upon the facts here presented, the company would be liable for a loss happening as this did, after the factory had-stopped running, although there was no night watch, and no pump in readiness'for use.
We think the same conclusion follows, in this case, from an express stipulation in the policy. The company there agrees, that it “will be responsible for the accuracy of surveys and valuations made by its agents.” ■Its counsel'claim that the word “ survey,” as here used, means only that which was merely matter of measurement or description. But we think, whatever may be its strict meaning, it has acquired in insurance cases a general meaning, which includes what is commonly called the application, which contains the questions propounded on behalf of the company and the answers of the assured. It was evidently used in this general .sense in this policy. It first states what the application must contain. It then declares that any false description by the assured, or omission to make known any fact material to the risk, shall render the policy void. And then immediately follows the provision above quoted: “But the company will be responsible for the accuracy of surveys made by'its agents.”
The context shows that the subject-matter to which this clause had reference was the application. And the entire provision relating to .that subject was evidently
We have no hesitation, therefore, in holding that this is the true meaning and effect of this clause in the „ policy. And it only shows that in this case the company expressly assumed a responsibility, which, in the absence of such an assumption, the court, upon the facts of this case, would have imposed upon it. And the company in such case is held liable, not upon the ground that parol evidence may vary the written contract, but that the company is estopped from taking advantage of the blunders of its own agents to avoid liability, after it has itself received the full benefit of the' contract.
In this case there is no ground for the objection that parol evidence is admitted to vary the contract, for the contract itself, in expressly providing that the company would be responsible for the accuracy of surveys made by its agents, evidently contemplated an inquiry into the question, whether the agent, in filling out the application, had accurately stated the answers of the assured.
This disposes of all the questions that seem material to be .noticed.
By the Court. - — The judgment is affirmed.
The defendant’s counsel moved for a rehearing, on the ground that the court had not discriminated between a waiver of the proofs of loss in the form required by the condition^ of the policy, and a waiver of the immediate notice of loss there required; and they contended that the plaintiff’s own evidence in this case showed that the notice was not given forthwith, and that there could be no waiver of the defense on that ground, except by an express contract to that effect upon a new. consideration. To this point they cited 18 Wis. 587; 11 Mo. 278 ; 29 Pa. St. 198.
The motion.for a rehearing was denied at the January term, 1870.