Prieger v. Exchange Mutual Insurance, 6 Wis. 89

Prieger v. Exchange Mutual Insurance

6 Wis. 89 | Wis. | 1858

By the Gourt,

Smith J.

It is insisted on the part of the respondents, that the “survey” or “application” furnished by *102the appellants for insurance, and the description of, and statements in regard to, the premises, were made, by the express terms of the policy, a warranty on the part of the appellants; and contended that if such warranty was not complied with, the policy was void; that if such statements or any of them are untrue, by mistake or otherwise, whether material to the risk or not, the policy is void.

Among the conditions for insurance contained in the policy is the following:

“ 1st. Applications for insurance on property shall specify the construction and material of the buildings to be insured, or containing the property to be insured, by whom occupied, whether as a private dwelling or how otherwise, its situation with respect to contiguous buildings, and their construction or materials; whether any manufacturing is carried on within or about it; and such description or specification shall he deemed apmd of the policy, cmd a warranty on the part of the insxt/red. When desired, the assured shall permit this company, or their agents, to examine the premises hereby insured. A refusal of this privilege will make void this policy.”

The printed £C survey” or “application” contained a column of interrogatories separately numbered, to be answered by the applicant in writing in a column opposite that containing the interrogatories and numbered appositely. The first is as follows: Name of premises, and where situated. 1. Prieger’s Paper Mill, situated N. E. qr. of sec. 26, town I, range 21, * * 9. How are the several stories occupied? During what hours are the premises worked ? By what power propelled ? If by water, is the supply sufficient? Ans.9. One and a half for machinery one for drying paper. The premises are constantly workec. Propelled by water power. Supply sufficient.

10. Is a watch kept upon the premises during the night ? Is there a good watch clock ? 10. Ans. No watch kept except the people working in the mill during the night.

It will be seen that the whole defense is based upon the answer to these 1st, 9th and 19th interrogatories, and it is contended that by tire term? of the policy they are made warran*103ties, and if untrue or incorrect the plaintiff cannot recover, whether material or not; that they are in the nature of conditions precedent, and must he shown to be correct and strictly fulfilled, or the policy is void.

It is further contended that the answer to the first interrogatory is shown to be untrue, in regard to the situation of the premises; the proof showing them to be on the S. W. qr. of sec. 25. The witness, Storey, testified, that he could not say, as the building was on the N. E. qr. of sec. 26, that the water to drive the mill was taken from the N. E. qr. of sec. 26. Tie thought the mill was on the S. W. qr. of sec. 25.

Now if the correctness of this description was in the nature of a'condition precedent, it is contended that this condition must be complied with before the plaintiff could recover, whether material or not.

We apprehend, however, that the counsel for defendanthave overlooked one important provision in the policy, or rather the survey and application, which is expressly made a part of the policy.

The scope and effect of these answers are particularly defined at their close, and before being signed by the applicant, as follows:

“And the said applicant hereby covenants and agrees to, “ and with the said company, that the foregoing is a just, full “and true exposition of all the facts and circumstances in re- “ gard to the condition, situation, value, and risk of the property to be insured, as fair as the' same are material to the “risk.”

(Signed,) “E. PEIEGEE & CO.,

“ Applicants.”

It is supposed that the court will take judicial notice of the relative situation of the sections and quarter sections of land according to government survey; and that the S. W. qr. of sec. 25 corners upon the N. E. qr. of sec. 26, and that if the water to propel the mill was actually upon the corner of the S. W. qr of sec. 25, it could not in any degree be material to the risk. Besides, the the testimony of Kluppack shows that if *104there was an error or mistake herein, it was the fault of the agent of the company, and not of the plaintiff. But it is entirely immaterial.

It will be observed .that the authorities cited by the defendant do not apply to this case, as the parties here have expressly limited their covenants, warranties and representations to matters material to the risk.

Keeping this point in view, we shall proceed to examine the nature, extent and effect of the answers to interrogatories 9 and 10, as these are the only remaining objections to the plaintiff’s recovery.

It is contended by the defendant’s counsel that the answer of tlie plaintiff to .the 9th interrogatory, was a warranty that the mill should be worked all hours, day and night, — Sundays as well as week days. The question is: “ During what hours are the premises worked ? By what power propelled ? If by water, is the supply sufficient ?” The answer is: “ The premises are constantly worked. Propelled by water power. Supply sufficient.”

Now the same rule of construction applies to policies of insurance as to all other contracts, and that is to ascertain the intention, meaning and understanding of the parties, and carry out the contract accordingly. What then did the parties understand by the answer of the assured, that the premises were constantly worked ? Evidently that the process of making pa•per in some of its stages was constantly going on at all reasonable and lawful times. They did not understand that the water wheels were continually in motion, that the pulp was continually in the grinding, that the machinery was always in motion; but that the premises” were constantly used for the purpose of manufacturing paper. The process of drying is as essential as that of grinding the pulp, and that process was going on, on the premises at the time of the fire.

Again, the mill was burned during Sunday night. It cannot be seriously contended that the foregoing answer implied an agreement to work the mill on Sunday. An unlawful act is never to be presumed or implied. It can only be inferred *105from this language that the parties understood that the mill or premises was to he constantly worked, during the usual and customary working days and hours, for the prosecution of like business

This is rendered more clear by the next question, and answer thereto : “Is a watch kept upon the premises during ihe night? ' Is there a good watch clock?” Ans. “No watch kept except people working in the mill during the night.”

Here is a distinct statement by the. assured that he kept no watch at all, except when people were working in the mill during the night. In other words that the only watch to be depended upon was that which resulted incidently from the observation of workmen when they were engaged on the premises in the night time. At other times there is no watch. There is no engagement or undertaking to keep men at work during the night time. Indeed there is no agreement to run the machinery nights, unless the manufacture required it.

On the whole we are unable.to discover any violation of any of the covenants on the part of the assured “ material to the risk,” and therefore think the plaintiff ought to have recovered below. The court therefore erred in nonsuiting the plaintiff, and the judgment must be reversed.

Judgment reversed.