52 La. Ann. 775 | La. | 1900
The opinion of the court was delivered hy
The defendant asks this court, in the exercise of the authority vested in it by Article 101 of the Constitution, to review the judgment rendered in the above entitled cause by the Court of Appeal for the Third Circuit.
It appears that the plaintiff, Murphy, sued the defendant,. in the district court for the parish of Rapides, for $2000, on a policy of fire insurance, for that amount, issued by defendant to cover a stock of merchandise, owned by plaintiff, which was destroyed by fire during the life of the policy.
Defendant denied liability, upon the ground that plaintiff had failed to comply with the “promissory warranty” contained in what is known as the “iron safe clause” in the policy.
The case was tried, in the district court, before a jury, and evidence was introduced to show that the “three-fourths value” and “iron safe”, clauses were waived, verbally, by the defendant’s agent, at the time of the delivery of the policy.
There was a verdict for the plaintiff, in the sum of $1000, which amount was increased, upon appeal to the circuit court, to $1863, and, a rehearing having been refused by the latter tribunal, the defendant presents to this court the application which we have now to consider.
In those opinions it is conceded that, unless waived, the clauses mentioned should he considered part of the contract and the assured should be held bound by them; the opinion of this court, in Goldman et al. vs. Insurance Co., 48 Ann., 223, being accepted as conclusive upon the point. It is held, however, that it was competent for the defendant’s agent, verbally, to waive such conditions at the time the said contract was entered into, notwithstanding the provision therein to the effect that no agent should be authorized to waive any of its conditions except by written agreement endorsed thereon; and, upon the question as to whether there was such a verbal waiver, it is said: “It “ is true that the testimony in this case is conflicting and contradic- “ tory, but, in such cases, it is an elementary rule of law that appellate “ courts will not disturb the verdict of a jury on a question of fact. “ The jury passed on the question of waiver and we cannot say that “there is such manifest error in its findings as to justify us in re- “ versing its verdict.” Upon the question of the amount, however, it was held that the error in the verdict was manifest, and the amount allowed was accordingly increased from $1000 to $1863. The court also appears to have held that, whilst the “iron safe” clause was waived, the “three-fourths of value” clause was not waived.
The “iron safe clause” provides, in substance:
“1. That the assured will take an inventory once a year.
“2. That he will keep books showing his sales and shipments.
“3. The assured will keep such books and inventory, and also the “ last preceding inventory, if such has been taken, securely locked in “ a fire-proof safe at night, and at all times when the building men' “tioned in this policy is not actually opened for business; or, failing “ in this, the assured will keep such books and inventories in some “ place not exposed to a fire which would destroy the aforesaid build- “ ing.”
“In the event of failure to produce such set of books arid inventories, “ for the inspection of the company, this policy shall become null and “ void and such failure shall constitute a perfect bar to any recovery “ thereon.”
It appears that an inventory was taken and that plaintiff’s business transactions were entered in books, but, upon the other hand, it is ad
The plaintiff claims that said conditions were verbally waived by defendant’s agent, at the time that he delivered the policy. The defendant, for answer, points to the following provision, -which is plainly printed on the face of the policy, to-wit:
“This policy is made and accepted according- to the following stipulations and conditions, together with such other provisions, agree“ments or conditions, as may be indorsed thereon, or added thereto, “ and no officer, agent, or other representative of this company shall “ have power to waive any provision or condition of this policy, except “ such as, by the terms of this policy, may be the subject of agreement “ indorsed hereon, or added hereto; and, ^.s to such provisions and “conditions, no officer, agent, or representative shall have such power “ or be deemed, or held, to have waived such conditions or provisions, “ unless such waiver, if any, shall be written upon, or attached hereto, “ nor shall any privilege or permission affecting- the insurance under “ this policy exist or be claimed by the insured, unless so written or “ attached.” , .. .
It will be observed that there are two distinct provisions'in this clause, viz: one, which prevents any officer, agent or representative of the company from waiving any condition in the policy except such as, by the terms of the policy may he the subject of agreement indorsed thereon; and another, to the effect that no officer, agent, or representative shall have power to waive, or shall be deemed to have waived, any condition of the policy unless such waiver is written upon or attached to the policy. No issue has been raised upon the basis of the first provision, and it may be passed over without further comment.
As to the second provision, the parol evidence, offered to show the waiver, was admitted without objection, and we need not, therefore, consider the question of its admissibility in view of the provisions of Article 2276 of the Civil Code, but may deal with the matter solely with reference to the authority of the agent and the sufficiency of the .proof.
To determine whether it has waived any of the .conditions of the contract sued on, we must, first, inquire whether the officer, agent, or representative, through whom it is said to have acted, was so authorized, or whether the plaintiff, in dealing with him, was justified, by the conduct of the company, in believing that he .was so authorized, and we must, next, inquire whether, as a matter of fact, he did the act which the plaintiff attributes.to him.
There is no affirmative evidence in the record which establishes the precise extent of, or limitations upon, the power of the agent of the company through whom the contract in question was made. This, however, is unimportant, for the -reason that, as between the company and the plaintiff, the former is bound by the acts of the agent, done within the scope of the authority apparently conferred on him; whether, as between the agent and the company, such authority was actually conferred or not. Nor, does it matter whether we call the agent a general, local, or sub-agent, since the important question is, not what we may call him, but what he is, or what the plaintiff, influenced by the manner in which he was held out by the company, was justified in accepting him as and believing him to be.
The company appears to be a foreign corporation, having its domicile in Liverpool, England. The policy sued on is signed, “The Royal Insurance Company, by their Attorneys.” (Signed) “Barbee & Castle-man, Managers Southern Department.” And Barbee & Castleman appear to be established at Louisville, Kentucky.
There is, however, printed upon the face of the policy the following provision, to-wit:
“This policy shall not be valid until countersigned by the duly au-
The evidence shows that A. L. Lacombe received the application for insurance, passed judgment upon the character of the risk, agreed upon the amount and term of insurance, and the premium, and delivered the policy, — all without reference to, dr communication with, Barbee & Castleman. From which it follows, and there is no denial of the fact by the company, that he was furnished with a form of policy, containing the printed conditions prescribed by the company, and signed by the managers, but, otherwise, in blank, and that he was authorized to fill up the blanks as occasion might require. He, accordingly, wrote the name of the assured, the amount of the premium, and the amount and term of the insurance, upon the face of the policy, and he wrote, or caused to be written, with a type writing machine, upon a separate slip which is attached to, and upon the face of, the policy, the description of the property insured.
Upon this slip is also to be found in legible print:
1. Permission to the insured to keep coal oil and gun powder.
2. The “three-fourths value clause.”
3. The “iron safe clause.”
Mr. Lacombe also received and receipted for the premium, a few days after the delivery of the policy.
This method of doing business indicates the scope of his authority,’ but. there are some things which, also, and quite as clearly, indicate limitations upon that authority, and go to show that he was not vested with all.’the powers of the company represented by him; thus:
1. As the policy declares, upon its face, that it is to be countersigned by him, the implication is clear that, in order to bind the company. it should first be signed by some other officer or agent; and this fact, as also the character, or identity, of such other officer or agent, is made apparent by the form in which the policy is drawn, as well as by the signature of Barbee & Castleman, as “Attorneys” of the company and “Managers Southern Department”. It is, therefore, plain upon the face of tiie instrument, that it required the signatures of Barbee & Castleman and of the agent at Opelousas in order to make it a contract such as the company contemplated entering into.
2. The policy declares, upon its face, in bold type, that no officer, agent, or representative, of the company shall have power to waive, or shall be deemed to have waived, any of its conditions, unless such
An insurance company has the right, which individuals have, of selecting its agents, and defining and limiting their powers. It may not only prescribe what such agents may do, but how they shall do it, and, where it, directly, or by implication, confers upon two agents, acting conjointly, the power to make a contract according to a prescribed form, and prohibits the alteration of that form, save in a particular manner, such agents are bound by their instructions, and third persons, dealing with them, are equally bound, provided they have knowledge, or are in a position where the law will impute to them knowledge, of such limitations and restrictions'of authority. And, in such a case, even if the inference be justified that the two agents, acting together, are vested with the whole power of the company, and may disregard the limitation of authority as to the form of waiver, such inference does not lead to the conclusion that one of them, acting alone, can not only unmake a contract which it requires the conjoint authority and action of both of them to make, but that, in doing so, he can ignore a prescribed form which can be waived only by a person exercising all the power of the company.
The general principles of law, which, as we think, ought to govern the case, are stated clearly enough by the text writers, and by many eminent jurists, though there are, no doubt, not a few adjudged cases in apparent conflict with them. The following excerpts appear to us to be applicable to the points at issue.
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“A general agent, in the strict legal sense, is one who has all the “powers of his principal in the business in which he is engaged; an “ extent of authority not often granted in insurance. In that busi- “ ness an agent is termed a general agent rather with reference to the “ geographical extent of his authority, in contradistinction to a local “ agent, who may have original powers, though exercising them within “more restricted limits; and the general agent may appoint local “ agents and sub-agents, while a local agent cannot. But there seems ' ‘ to be no very well defined distinction between the powers of general “ agents, local agents, and sub-agents, and, therefore, it may, in any “ case, become a question of fact for the jury.”
May on Insurance, No. 126.
“The same rules apply to insurance companies as apply in the case “ of individuals, and a person who' is clothed with power to act for “ them at all, is treated as clothed with authority to bind them in all “ matters within the scope of his real or apparent authority. Persons “ dealing with them in that capacity, are not bound to go beyond the “ apparent authority conferred upon them, and inquire whether they “ are, in fact, authorized to do a particular act for the company. It “ is enough, if the act is within the scope of their apparent power, and “ beyond this, third persons are not bound to make inquiry.” Wood on Insurance, Sec. 405.
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“In all eases where the assured has notice of any limitations upon “ the agent’s power, or where there is anything about the transaction “ to put him on inquiry as to the actual authority of the agent, acts
“The rule may be said to be that, unless notice is given■ to the as- “ sured that, in respect of certain matters, within the scope of his “ apparent authority, certain limitations are imposed upon the agent, “ his acts, within the scope of such authority, shall be treated as the “ acts of his principal and not the acts of the person with whom he “ deals as the representative of the principal, even although the policy “ declares him the agent of the assureds The question is not what the “ powers of the agejit, in fad, were, but ivhat power did the company “ hold him out as possessing."
Commercial Ins. Co. vs. Ives, 56 Ill, 402; Columbia Ins. Co. vs. Cooper, 50 Pa. St., 331; Poche vs. Hartford Ins. Co., 25 Conn., 51; Ins. Co. vs. Wilkinson, 13 Wall; Eclectic Life Ins. Co. vs. Fehrenkrug, 68 Ill., 463.
“From the business with which the agent was entrusted, had the “ assured the right to understand that he had authority to do the par- “ ticular act in reference to which the principal denies his authority? “ In order to charge the company, the assured must, from the facts, be “ warranted in relying on it that the agent had authority' to do the act
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“When the assured knows, or ought to know the extent of the agent’s “■authority, he cannot charge the principal for matters in excess “thereof (Galbraith vs. Arlington Ins. Co., 12 Bush (Ky.) 29; Vose “vs. Eagle Ins. Co., 6 Cush. (Mass.), 42; Lowell vs. Middlesex Ins. “ Co., 8 Cush. (Mass.), 127), and, if the assured knows the extent of “the agent’s power, and concludes with him a contract in excess “thereof, he can derive no benefit thei'efrom”. Wood on Insurance, See. 416.
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“That an agent may waive a forfeiture is well established by “ authorities. But where a limitation is imposed upon the power of an “ agent, upon the face of the policy, of which the assured, as a prudent “man ought to know; and there is-no evidence that the agent has “ been accustomed to act in excess of such power, with the express or “ implied consent of the insurer, the insured is not justified in dealing “ with him in reference to such matters, and his acts, as to the excess “ of authority, are no.t binding on the company. Catoir vs. Ins. Co., “ 33 N. J., 487; Mersereau vs. Phœnix Ins. Co., 66 N. Y., 274. In “ commenting upon such notice, given .to a policy holder in a New “ York case, Allen, J., announced what we conceive to be the rule applicable and generally held. lie said: ‘In the face of a distinct “ written expression in the policy of a want of power in the agent, the “ party suing to recover upon such policy has no right to infer the “ subsequent existence of such power by any uncertain sign. There “ must be evidence to justify the belief that the company, by direct “ authority, enlarged the authority of the agent, or that they kiiow- “ ingly permitted him to act for them beyond the scope of the power “ originally conferred.’ ” •*
(All italics are the author’s). Wood on Ins., Sec. 417.
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“The general principles of the law of agency are applicable to insurance, as well as other, agents, and they need not be re-stated “here. But the business of insurance is carried on almost exclu- “ sively, and to a greater extent, perhaps, than any other, through such “ mediums. This has given rise to doctrines of law, either peculiarly
The provisions of the policy respecting his authority are, “however, “ usuálly held to be binding; but, as the cases cited show, where he is “ not so limited, and is entrusted with the execution of policies, his “ acts in behalf of the company, even to the extent of changing the “ printed portions of the policy, are binding upon the company, where “ they fall within the authority, which he is held out as having, or are “ justified by the usual mode of transacting such business,' and the “ scope of his employment, or the particular circumstances of the “ case.”
A. & E. Enc. of Law, Yol. 11, p.‘320.
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“Where a policy, for instance, provides that imocuring additional “ insurance without consent of the company shall avoid it, and that “ the agent has no authority to nullify its conditions, and the assured “ procures additional insurance upon the representation of the agent “ that it will be all right, the company is not estopped to deny its “ liability, though the insured, through no fault of the company, or its “ agent, had never seen the policy; and though the agent had authority, “ in a certain way, to consent to additional insurance, and had done so “ in other cases, he not having consented in this case within the line of “ his authority or in the manner prescribed in the policy.
“Cleaver vs. Traders’ Ins Co. (Mich.), 39 N. W., 591.
“A. & E. Enc. of Law, Vol. 11, p. 323.”
We ta.ke the following excerpts from “Ostrander,” from the brief furnished by relator’s counsel, the volume itself not being at hand:
“When the policy provides, in distinct language, as occurs in “ most cases, that no agent shall have power to change or modify its “ terms or waive any of its conditions, except by distinct and specific “ agreement, indorsed in writing thereon, the assured will be presumed “ to have notice, after the policy has been delivered to him, that the “ agent has no power to make any change in the terms and conditions “ of the insurance except in the manner provided, and any attempt on “ the part of the agent to waive, by oral agreement, any of the policy “ conditions will be a nullity. The courts have held in numerous
Ostrander on Eire Insurance, p. 331, Sec. 49.
“There is another class, which is usually referred to by the courts, “ and distinguished as general agents. While this class is more important'in respect to its duties and responsibilities, and has larger “ liberties, its powers, nevertheless, are limited to making contracts “ of insurance, fixing- rates, filling up and countersigning policies, and “ collecting premiums. Having power to make a completed contract, “ they will also be presumed to have power, by agreement with the “ assured, to ‘change, alter, or nullify,’ its terms and conditions, at any “time after the delivery of the contract, and after it has become “ binding between the parties, unless limitations are ' imposed, of “ which assured has notice. The form of policy, however, now in gen- “ eral use, restricts the- authority of an agent, in regard to changing “the terms of the insurance or waiving any of its conditions, to “ written indorsement. Under policies of this form, the agent has no “ power' to enlarge or otherwise to change the obligation of the com- “ pany by parol. It can only be done in the mode which the policy “ provides.”
Ostrander on Fire Lis., p. 551, Sec. 265.
“The principal is bound to execute the engagement contracted by “the attorney, conformably to the power confided to him. For any- “ thing further, he is not bound, except in so far as he expressly ratifies it.” 0. 0., 3021.
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In Reeve, Case & Co. vs. Phoenix Ins Co., the proposition was urged that the clauses relied on by the company were unusual, and that the attention of the assured was not especially called to them. This court said:
“First. We do not think the unusual character of these clauses in “ New Orleans, if established, could affect the right of the defendant, “ under the circumstances of this case. The policy was accepted by “ the insured nearly a month before the fire; the assent of the insured “ to all its provisions is presumed; and to allow the express contract of “ the company to be varied or impaired by the contracts of other com- “ panies in the same city would be very dangerous.”
“Second. There is no evidence to establish the serious charge that “ the agent of the company concealed those clauses from the assured. “ He signed and delivered to them the policy in the usual way. The “ clauses in question are printed plainly in the same type as the rest of “ the body of the instrument, with the first words of each in capitals, “ and attention called to the paragraphs respectively by an index. “( ) If the insured did not examine the policy, it would seem to
“ have been their own fault.” 2 Craneh, 444.
“Third. We do not think that the right of the defendant can be “ impaired by the fact that the attention of the insured was not espec- “ ially directed to these clauses. As before remarked, the policy was “ executed and delivered to the assured in the usual way. It is not a “ long document. It could be read in a few moments. It remained in “ the possession of the insured for twenty-six days before the fire. We “ think the insured must be held to be fully bound by its terms.”
Reeve, Case & Co. vs. Phœnix Ins. Co., 23rd Ann., 220.
Wood 9; 2 La., 399; Adams vs. Ins. Co., 36 Ann., 660.
“On the trial, the plaintiffs produced the written proposal made by “ the company and accepted by them, to show that a voyage, such as “ that on which the schooner was lost, entered into the contemplation “ of the parties; that it was so particularly understood by the plain- “ tiffs, and that the terms inserted in the policy must have been placed “ there through error or fraud. The court received the evidence, “ though objected to; and the jury having found a verdict against the “ defendants, which was affirmed, they appealed.
“We think the court erred. Admitting the document offered to be “ legal evidence to control the written policy in any case (on which “ we express no opinion), we are satisfied that it could not be intro- “ dueed by the plaintiffs in the present action. If error or fraud occa- “ sioned a contract to be executed in writing different from the intention of the parties, it was the duty of the party relying on such allegation, to make it the basis of his action, to give notice of it to the “ defendants, and to afford means to them to meet, and, if in their “ power, to refute it.”
Lippincott vs. La. Ins. Co., 2 La., 399.
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“The assured can not plead ignorance of the clauses in the policy. “ It was their duty to read the policy, so as to determine whether or “not it was made in accordance with the application. * * * A “ person dealing with the insurance company ought at least to know “the general course of its business, and, if he desires exceptions in “policies to be avoided, he ought to state the fact in his application, “ and be willing to pay the additional premiums for the risk.”
Weinberger vs. Merchants Ins. Co., 41 Ann., 31.
“This brings us to consider the following stipulation or covenant of “the policy. ‘And it is further expressly covenanted by the parties “hereto that no officer, agent or representative of the company shall “be held to have waived any of the terms and conditions of this “ policy, unless such waiver shall be indorsed hereon in writing.’ The
Carey vs. German Amer. Ins. Co. (Wis.), 20 L. R. A., 261.
“But even if the agent knew the fact of residence within the ex- “ cepted period, he could not waive the forfeiture thus incurred with- “ out authority from the company. The policy declared that he was “ not authorized to waive forfeitures; and to this provision effect must “be given, except so far as the subsequent acts of the company per- “ mitted it to be disregarded.”
“The doctrine of waiver, as asserted against insurance companies, to “ avoid the strict enforcement of conditions contained in their poli- “ cies, is only another name for the doctrine of estoppel. It can only “ be invoked where the conduct of the companies has been such as to “ induce action in reliance upon it, and when it would operate as a “ fraud upon the assured if they were afterwards allowed to disavow “ their conduct and enforce the conditions.”
Globe Mut. Life Ins. Com. vs. Wolff, 25 U. S., 326 (24 L. R. A., 387).
“The present case is very different fro-m Insurance Co. vs. Wilkinson, 13 Wall., 222, and from Ins Co. vs. Mahone, 21 Wall., 152. In “ neither of those cases was any limitation on the power of the agent “ brought to the notice of the assured.”
N. Y. Life Ins. Co. vs. Fletcher, 117 U. S., 519-530 (29 L. R. A., 934).
In a case decided by the Supreme Court of Georgia, in J uly, 1899, a typewritten copy of the opinion in which has been furnished us, a clause, identical with that in the policy before us, limiting the authority of the agents of the company, was considered, and it was held that:
“A mere oral permission to the insured, by the agent who issued the “policy, to take out additional insurance, was not binding upon the “ company, and did not estop it- from setting up as a defense to an “ action thereon, that the insured, in violation of the terms and con- “ ditions of the policy had, in fact, taken out additional insurance on “ property covered by the same.”
Lipman vs. Aetna Ins. Co. (Ga.), 9 S. W.
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Of the adjudged cases relied on by plaintiff, that of Insurance Co. vs. Wilkinson, is disposed of, in so far as any present application is concerned, by the opinion in Insurance vs. Fletcher, 117 U. S., 519, quoted above. The case of Story vs. Insurance Co., 37 Ann., 255, is equally inapplicable; for there, the court found that the assured dealt with the president of the company, at the office of the company, at a time subsequent to the making of the contract; and, finding, as a fact, that the president “had consented to a waiver, held, that it was the act of the company.” In McGurk vs. Metropolitan Life Ins. Co., 1 L. R. A., 563, it appeared that the plaintiff’s application for life insurance “was filled out in plaintiff’s grocery store, by the assistant superintendent of the company in the district where the assured resided; that this was done in the room where the assured kept liquors, and whilst he was selling them, and that the agent of the company drank
“ ‘The person upon whose life this policy is issued, shall not be con- “ nected in any capacity with the ale, wine, or liquor business, unless “ so specified in the application heretofore referred to, or unless per- “ mission be given by permit signed by the president or secretary. “ * * * Agents are not authorized to make, alter, or discharge “ contracts, or waive forfeitures, or receive premiums or policies in “ arrears after the time allowed by the regulations of the company.’ ”
It appeared that the policy was delivered to the assured in his place of business, where he was selling liquor, and that he continued to sell liquor, to the knowledge of four different agents of the company, and that he also continued to pay premiums, which were collected by an agent who knew that he was so engaged, and who turned the premiums over to the company.
It was held that the knowledge of the agents, under such circumstances, was the knowledge of the company, and that the receipt of the premiums was a waiver, by the company, of the conditions relied on by it.
In the case at bar, the first premium (paid to the agent who issued the policy) was the only one which was paid, and the evidence upon the questions of fact connected with the transaction was totally different from that upon which the case cited was decided.
Our conclusion then, from what has been heretofore said, is that, upon the case as presented, the company might have waived the conditions contained in the “three-fourths value” and “iron safe” clauses, and that this might have been done orally, notwithstanding the stipulation in the policy requiring all waivers to be in writing, and that what the company might have done, must, if done at all, have been done by an officer, agent or representative authorized for that purpose;-but that the-company did not waive said conditions, and that the agent who is said to have done so on behalf of the company was without authority in the premises, and that the assured knew, or-ought to have known, that, he was without such authority. '
As to the question of fact, or perhaps it may be called a mixed question of law and fact; whether what was done by the agent could
The claim here is, not that, after making a written contract the defendant, at a subsequent period, by oral agreement waived a condition therein contained in its favor, but that, there being neither fraud nor error in the matter; — synchronously, with the making of the written contract, the parties thereto entered into a verbal contract, whereby they agreed that the written contract did not, or should not, express their true intent and understanding, but should be subordinated, in certain important particulars, to said verbal contract, made and completed at the same instant. But the plaintiff brings his suit upon the written contract, and annexes it to, and makes it a part of, his petition, in which, however, he says:
«-x- * * That he faithfully, at all times, complied with the terms “ and requirements of his policy of insurance, and with the slip or “ form thereto attached, the three-fourths value clause and the iron “ safe clause of which he denies forms any part of said policy, and “ denies reference to application is a warranty.”
He desires to have this written contract enforced, therefore, to the extent that it imposes obligations on the defendant, and declared void to the extent that it appears to impose upon him certain obligations, which he selects, for no apparent reason so far as disclosed, there being no allegation or reference in the petition to any verbal contract or waiver whatever, or to any other agreement' than that represented by the policy of insurance upon which the suit is brqught.
It must be admitted that the theory thus propounded, which is more fully developed by the introduction of the oral evidence, is not one which is likely to commend itself to ordinary, rational business men, and it is not altogether easy to say which of the two contracting-parties is placed by it in the more remarkable position. The insurance agent is supposed to have agreed, verbally, that the obligations binding his company in writing shall so bind it hard and fast, and that those which bind the plaintiff, also in writing, shall go for nothing; whilst the plaintiff, although binding himself in writing, is will
To proceed further, however. In the application for insurance, which is partly printed and partly written, the following question appears, to-wit:
“Will you agree to make a detailed inventory at least once a year ? “ Will you agree to keep your account books, and last two inventories “ in a fire-proof safe, or remove them when your store is not actually “ open for business to some secure place, not exposed to a fire which “ would destroy the house where your business is carried on, and to “ produce such books and inventory in case of loss ?”
These questions are answered by the assured in the affirmative.
The policy was filled up, delivered, and accepted, at the same time that the application was signed, the whole being one transaction. The “three-fourths value clause,” and the '“iron safe clause” are printed upon a separate slip (containing also a description of the property insured), which is attached upon the face of the policy. The description might readily have been entered upon the policy itself, and the entire slip left off; or the two clauses, which are printed in separate paragraphs, might have been cut off, leaving upon the slip only the description of the property and the consent of the company to the sale of oil and gunpowder.
The plaintiff, however, instead of requiring that this should be done, fortified and confirmed his written proposition, evidenced by the application which he had signed, by accepting the policy with these printed conditions thus, ex industria, and conspicuously, printed in it, and he now claims exemption from these conditions upon the ground that this written evidence, which he had thus concurred in making, is, in point of fact, false, and that the court should accept,'by preference, his statement, flatly contradicted by the other party to the contract, of a contemporaneous oral agreement, whereby the written contract was to be of no effect.
The testimony upon the subject, adduced before the jury, was as follows, to-wit:
Plaintiff says:
“I made the application a few minutes before the policy was issued. “I signed that application. I did not read the application. It was “ hastily drawn up; it was in his, the agent’s handwriting. ITe read “ the questions to me. ITe did not inform me that the statements in
“Hr. Lacombe read the questions to me, and I answered some of “ them. Some of them I did not answer. * * ■ * I do not remem- “ her what questions I did not answér, * * * after that applica- “ tion was answered, Hr. Lacombe did fill up and hand me the policy “ * * * with the slip attached, just as it stands, but he told me “ that the three-fourths value clause and the iron safe clause attached “ did not affect the policy. I received the policy and retained it in my “ possession until after the fire when I sent it to my attorney.
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“I did not read the policy, only the slip attached. What attracted “my attention about the slip was the iron safe clause. * * * If “ Mr. Lacombe had not told me that the iron safe clause cut no figure, “ I would have complied with it.”
He also testified that an inventory, which had been taken shortly before the insurance was effected, was found by him, after the fire, at his residence, and that he kept the policy at his residence,- but that his books were left in the store, and were burned. He further says that he paid the premium three or four days after the policy was issued, and that it was tendered back to him a few days after the fire, by Mr. Lacombe (quoting the language) : “He offered it to me as the rep- “ resentative of the company, and advised me as a friend, not to “ accept it, and stated he was going to New Orleans that night, and “ would try to have the matter adjusted.”
The evidence shows that the stock of goods in question had been purchased by plaintiff from Mrs. Marshall Compton, that but a portion of the purchase price had been paid, and that plaintiff has authorized his attorney to pay over to Mrs. Compton eighty per cent, of any amount which he may recover in this suit.
“Mr. Lacombe told me he knew Murphy had no iron safe when he “ issued the policy sued on. * * * I heard Lacombe say to “ Murphy: ‘As the representative of the Royal Insurance Co., I ten- “ der you this $60, but as your friend, I advise you not to take it.’ He “ told Murphy he thought that he would get his money.”
He also testified that the stock of goods was sold to Murphy for $2,485, and that $500 of the amount had been paid.
Upon the other hand, Lacombe, for the defendant, gives the following testimony. Speaking of the application, he says:
“The answers to the questions are in my handwriting. They were “ written down by me in response to the questions propounded to Mr. “ Murphy. After the answers were written down, he signed the ap- “ plication. * * * All of these answers are written down just as “ they were given me by Mr. Murphy.”
He then explains that the answer in regard to “incendiarism is “ incorrectly written, as is apparent.”
♦X* *3f -X* ff ' *X* ff if if
“Witness examines question headed ‘inventory,’ and says: ‘That “ question was explained to Mr. Murphy at the time. I explained it to “ Mr. Murphy by asking him if he would take an exact inventory at “ least once a year; he answered ‘yes.’ I said, will you agree to keep “ your account books and last two inventories in a fire-proof safe or “ remove them when your store is not actually open for business to “ some secure place not exposed to fire which would destroy the house “ where your business was carried on, and to produce such books and “ inventories in case of loss ?”
“Mr. Murphy advised me that he had no iron safe, and that he “ would remove his books to his place of lodging, nightly, after his “ place of business was closed. I advised him that it was not neces- “ sary for the safe, if he would sign an application agreeing to remove “ his books to a place of safety after business was closed, and to pro- “ duce said books in case of loss by fire, and he agreed as per his sig- “ nature attached to his application. I would not have issued the “ policy, nor would the company have accepted the insurance, had not “ this application with his signature thereto attached accompanied the “ daily report to the company, showing the amount that I had bound
(This statement is borne out by his application which is before us in the original).
It may be remarked here that the insurance was solicited by the assured and not by the insurer.
Mr. Alexander, a witness for the defendant, testified that he was an agent of the company, that he went with Major Hereford, the special agent aixd adjuster for Louisiana and Texas, to see Mr. Murphy about his loss.
“Mr. Murphy (said the witness) told Major Hereford he bought it,” “ (the stock) from Mrs. J. J. Compton, paying her $2,400, cash, and “ he then asked him if he had taken an inventory, he replied that he “had; ho then said, Mr. Murphy, if you will bring your books and “your inventory to the hotel, I will there take up the loss,” Mr. Murphy replied, that “he had no books or inventory and that they had “ all been destroyed in the fire. Major Hereford then asked him to “ show him the policy — opening it and showing Mr. Murphy the 'iron “ safe clause,’ told him that he was very sorry, but that he could not “ do anything for him as the policy was void, that the company did “ not owe him a cent, and that he would instruct Mr. Lacombe to “ return him the premium. Mr. Murphy said 'do you mean that you “ are not going to pay me anything?’ Major Hereford told him that he “ was powerless to act; that, the provisions of his policy being .violated, “vitiated the contract; that he should have kept his books out of the “ store. Mr. Murphy told him that he had always done so up until the “night of the fire, and explained to him, particularly, why he had “ happened to leave them there that particular night, that he had been
The plaintiff admits that Major Hereford called on him and that Mr. Alexander was present at their conversation, of which he gives the following' version, to-wit:
“Major Hereford asked me for the policy and for the books and I “ gave him the policy, and told him that the books were burned.' He “ asked me if I had a safe and I told him that I did not.' He asked “ me, then, what I considered the value of the policy and T told him “ that I valued it at its face value, $2,000.' He folded it up, then “ handed it to me and said' that it whs void. I told him that I would “ have it investigated.” ’ '
This is about all the testimony, material to the point at issue, that was given in the case. '
It will be observed that it is placed beyond all question that the plaintiff ■ signed the application knowing that thé “iron safe clau&e” was embodied in it, and th'át he accepted the policy knowing that the clause was incorporated in it. He and Lecombe concur, that it was understood between them that he had no iron safe, and whilst Lecombe testifies, specifically and circumstantially, that he told the plaintiff that he -could comply with the condition in question by removing his books to a safe place, when his store was closed, and by agreeing' to produce them in case of a loss, and that the plaintiff agreed to do so, and signed his application with that understanding, which was in entire conformity with the conditions as written, the plaintiff is profoundly silent on that subject.
It will also be observed that, whilst Mr. Alexander testifies to a conversation between the plaintiff and Major Hereford, in which the former stated that he had always taken his books home at night, the plaintiff, giving his version of that conversation, relates only so much of it as refers to his having had no iron safe (which was understood from the beginning), and makes no mention of anything said about the alternative obligation of removing his books. He is not, however, put on the stand to deny the truth of the testimony given by Alexander.
The Court of Appeal, though considering the evidence, as to the fact of the waiver “conflicting and contradictory,” was, nevertheless,
Our investigation lea^s us to a different conclusion.- To us, the error of the jury, in finding that there was a waiver of'either condition, by any one authorized, or pretending- to be authorized, to that effect, is as manifest as the error as-to the amount, and we think that the proof falls as far short with respect to the waiver of the “iron safe clause” as with respect to the waiver of, the “three-fourths value clause.”
It is proper to say, in conclusion of this opinion, which has been thus extended on account' of the' importance of, and wide-spread interest in the question at issue, that whilst this .court,, exercising the jurisdiction conferred by Article'101 of the Constitution, will not undertake to review, either as to law or fact; all cases which may be decided by the other courts of the State, since, if that had been the intention of the framers of the Constitution, all cases would have been placed upon the basis of those in which appeals are allowed, nevertheless, the jurisdiction thus conferred must, and will be, exercised in any proper case, whether the issue be one of law or fact, or both; the question as to what constitutes' a proper case necessarily depending upon varied circumstances and requiring the exercise of a sound discretion. - - - - ■ ■
In re. Ingersoll, praying, etc., 50th Ann., 748; West vs. Mrs. De Moss and Husband, 50th Ann., 1349; Brown Shoe Co. vs. Mill & Bro., 51 Ann., 920; Monroe Mercantile Co. vs. Elder, 51 Ann., 1773; Mrs. Irene Davenport, Tutrix, vs. Adler & Co. (this day decided).
For these reasons, it is ordered, adjudged and decreed that the writs herein issued be maintained, that the judgment herein rendered by the Court of Appeal for the Third.Circuit be annulled, avoided and reversed, as also .the verdict and judgment rendered in, and by, the District Court for the Parish of Rapides, and it is further ordered, adjudged and decreed that there now be judgment in favor of the defendant, the Royal Insurance Company, and against the plaintiff, u. N. Murphy, rejecting the demand of the latter, and dismissing his suit with costs in all courts.
Rehearing refused.