65 F. 724 | 4th Cir. | 1895
(after stating the facts). The question of law raised hy the defendant’s exceptions in this case is, what is the effect of the words “subject to coinsurance clause” in the policy of insurance in the item of $2,000 on their wharf and tramway thereon “subject to coinsurance clause,” and what was the legal effect of the testimony of the agent of the insurance company with regard to it? . The condition which the defendant contended was imposed upon the policy by these words was a restrictive condition, depriving the assured of something to which it was entitled under the general terms of the policy. Such restrictions are to be taken most strongly against the party for whose benefit they are intended. Palmer v. Insurance Co., 1 Story, 360, Fed. Cas. No. 10,698; First Nat. Bank v. Hartford Fire Ins. Co., 95 U. S. 673, 678; Thompson v. Insurance Co., 136 U. S. 287, 297,10 Sup. Ct. 1019. It devolves upon such party to express the restriction in language which conveys the meaning intended. The party who accepts the policy should be informed by it what is the contract for which he has paid the premium and upon which he relies for indemnity. Ang. Ins. §§ 20-22.
We can see no ground for the defendant’s first exception, which is to the court’s instruction that, if there was doubt as to the construction .of the policy, it should be solved in favor of the assured, and we can see nothing in the instruction to mislead the jury.
It does not appear that there was any error in this instruction of which fhe insurance company can complain. Unless there was some restriction by which the assured was prevented, it was entitled under the general terms of the policy to the whole sum insured. The insurer claimed that the restriction was contained in the words “subject to coinsurance clause” of themselves. We think the court right in holding this not to be so, and that the words had no definite meaning. The insurer was then (against the objection of the plaintiff) allowed to explain what was the clause it would have attached but for an oversight. Surely the defendant could not ask to he placed in a better plight tban if the policy had been completed as was intended. Attention had been called to the fact that the
The sixth exception was to that part of the charge which instructed the jury that, in order to bind the defendant by the special meaning which the agent of the insurance company contended he had explained in the original negotiation to be the import of insuring the wharf and tramway “subject to coinsurance,” the jury must find that this explanation was made to some person whose connection with the plaintiff corporation was such that he had authority to make and alter contracts on its behalf. In this policy the words “subject to coinsurance clause” would seem to import that there was some clause, either in the policy or to be attached thereto, by which coinsurance was to be regulated and the contract controlled either as to the extent of the risk or the basis of the settlement of the loss. This idea is favored by the provision “subject to freshet clause,” and the attaching of a clause with regard to freshets to form a part of the policy. There was no evidence sufficient to submit to the jury to find that the words “subject to coinsurance” had any fixed technical meaning in the business of insurance. By the special explanation claimed to have been made to Mr; Murphy, Jr., before the first policy was issued, it was attempted to interpret the contract in such a manner as to add to it a clause which it did not contain, or else to show that the policy did not express the previous verbal understanding. If this could in any case be permissible, it would seem that the understanding which was to control the written contract should be between persons authorized to bind the parties to the contract. But, in our opinion, these verbal explanations, no matter to whom made, were incompetent testimony