Sprott v. New Orleans Insurance

53 Ark. 215 | Ark. | 1890

Hemingway, J.

All errors assigned upon this appeal relate to the charging of the jury; but the appellee contends that the questions argued by counsel for appellant are not presented by the record, because the charge was not preserved in the bill of exceptions. If that contention is correct, its decision relieves the necessity of considering any other question.

A “skeleton bill of exceptions” was prepared, signed and filed, and is brought before us by certiorari. After setting out all the evidence in the cause, it continues: “And thereupon the plaintiff asked the court to instruct the jury as follows: (clerk will here copy plaintiff’s instructions as asked, leaving off the amendments of the court.)” It then recites that the court refused the first prayer of plaintiff in the form submitted, but gave it after adding a clause which is set out; it also recites that the court refused the third prayer as submitted by plaintiff, but gave it after adding a clause which is set out. The transcript contains what purports to be the prayer for a charge as presented by plaintiff, but the appellee contends that it is not identified by the call in the bill of exceptions. It is indorsed, “Instructions for plaintiff,” and is divided into paragraphs, entitled instructions one, two, three and four; it shows that amendments «were made to the instructions as asked, which accord with the recitals in the skeleton bill.

1. Skeleton bills exceptions Identification of instructions. Is the identification sufficient? The bill calls for tions for plaintiff,” and the transcript contains a series of structions endorsed, “instructions for plaintiff.” The bill discloses that the judge added certain clauses to instructions numbered one and three, and the instructions thus numbered in the transcript contain the clauses so added. The identification might be more complete; but we think the call “to copy” fairly imports that the instructions asked were in writing, and in the custody of the clerk; the indorsement on the instructions, as transcribed, correspond with the call, and the amendment by the court, recited in the skeleton bill, corresponds with that shown upon the transcript.

In the case of Keith v. Herschberg Optical Co., 48 Ark., 138, the bill of exceptions was as follows: “The defendant, to maintain the issues on his part, introduced in evidence the agreed statement of F. Moore, which is in words and figures as follows, to wit: (Here copy Moore’s statement.)” The statement had not been signed by counsel or marked filed, but was endorsed, “F. Moore’s statement,” and in this answered the call; the court held it was sufficiently identified.

The instructions asked by the defendant were brought upon the bill of exceptions by the same call as those for the plaintiff; there is the same means of identification except that they were not amended by the judge; but, under the decision above cited, we are constrained to hold the identification sufficient. If it were charged that the transcript did not in fact contain the instructions passed upon by the circuit court, we would find much difficulty in reaching this conclusion; but, as there is no denial of identity, marks of identification are less rigidly scrutinized.

The instructions asked by the plaintiff and those given on behalf of the defendant relate to two alleged breaches of warranty on the part of plaintiff; the first, that the diagram of the premises insured, as set out in the application, was correct, whereas it was in fact incorrect; the second, that plaintiff agreed to keep his books of account and the last inventory of his stock in a fire-proof safe at night, or in some secure place not exposed to fire which would destroy the house insured, whereas he kept them in the part of the house insured occupied by him as a dwelling, and not in a safe of the character indicated. We will consider the instructions in that order.

2. Insurance company— Sn^ — Mis7eapl byScompañy’s *• The diagram accompanying the application was made by the solicitor of the company who was authorized to take and forward applications for insurance, deliver policies and collect and remit premiums. He knew the situation of the property, and made a diagram which the plaintiff never saw. If it was false, he made it so; and it does not appear that plaintiff had any knowledge of that fact. Although the policy contained a warranty by plaintiff that the diagram was correct, there was nothing to apprise him that it was incorrect ; of this it seems that he and the general agent of the defendant were equally ignorant. The fault rests with the solicitor; to whom shall it be imputed? He acted in behalf of the company, and it accepted the fruits of his work; but it is said that he was a "solicitor,” and not an "agent,” of the company, and that the application recited that, in writing out answers to questions in it and in preparing a diagram, he acted as the agent of the insured. For convenience in the conduct of its business, the company may make the above classification of its agencies, but it cannot disown any one by classifying them. Neither can its declaration override the facts, nor a fiction dissolve existing relations. Without inquiring into the scope of VanDyck’s agency, it is sufficient to say that in the matter of procuring the application he acted for, and was in law the agent of, the company. The insured had a right to expect that he would make a correct diagram, and to believe in accepting the policy that he had made it correctly. The knowledge that it was incorrect was chargeable to the company through its agent, while the insured knew nothing of it; it could not, having such knowledge, issue the policy and afterwards defeat liability growing out of it, by inserting in it for him the warranty, of a fact which it knew to be false. Dwelling House Ins. Co. v. Brodie, 52 Ark., 11.

The first instruction asked by the plaintiff should therefore have been given without the amendment, and the first, seventh and fourteenth instructions asked by the defendant should have been refused.

3- Waiver of warranty m poll-of msurance2. The policy contains a warranty that the insured would L J ' keep the books of his business and the last inventory of stock at night in a fire-proof safe, or in some secure place not exposed to a fire which would destroy the building insured. He kept them in the part of the building insured which he occupied -as a dwelling, and not in a safe. When preparing his application, he told the solicitor that he had no safe, and would keep the books in his dwelling; and the application which is made a part of the policy contains the following question and answer: “Q. Do you agree to keep your books in an iron safe at night? A. Keep them in •dwelling at night. ’ ’ Although 1 the question contained no reference to any other place in which the books might be kept other than an iron safe, the answer furnishes the information that they would not be kept in such a safe, but would be kept in a designated place. Its situation with reference to the property insured was disclosed by the application, and was known to the solicitor. The company, thus advised of the purpose of the insured, without objecting to it, issued the policy, and thereby acquiesced in the purpose expressed. It would be a reproach to the law if a recovery could be defeated on such a pretext. The sixth and tenth instructions given at the request of the defendant should have ( been refused. The second, eleventh and ninth instructions, given at the request of the defendant, announce correctly legal principles; they should not have been given, unless the principles were pertinent to the case made by the proof.

As to that, inquiry by us would involve a useless consumption of time, which we may properly give to other causes pressing upon our attention.

For the errors indicated, the judgment will be reversed, and the cause remanded for a new trial.