Tubb v. Liverpool & London & Globe Insurance, 106 Ala. 651

Tubb v. Liverpool & London & Globe Insurance

106 Ala. 651 | Ala. | 1894

HARALSON, J.

-r-l. The demurrer to plea number *658ten should have been sustained. The plea very carefully avoids the allegation, that the alleged false or untruthful swearing was knowingly or willfully done. The authorities seem to be very uniform to the effect, that the swearing such as is averred this policy required, and such as was made by the insured after the loss in proof of the value of the goods destroyed, in order to work an avoidance or forfeiture of the insurance, must have been knowingly and willfully done with a fraudulent purpose, and that a mere innocent mistake, or mis-statement, or 'over-valuation, do not constitute a defense. — 2 May on Insurance, § 447; 2 Wood on Ins., § 441; 1 Biddle on Ins., § 444; 11 Am. & Eng. Encyc. of Law, 301; Titus v. Ins. Co., 81 N. Y. 411; Mutual Ins. Co. v. Gargett, 42 Mich. 289 ; Dogge v. Ins. Co., 49 Wis. 502 ; Watertown F. Ins. Co. v. Grehan, 74 Ga. 642 ; Carson v. Jersey City Ins. Co., 14 Vroom (N. J. Law) 300 ; P. & M. Ins. Co. v. Dedford, 38 Md. 382 ; Little v. Phoenix, Ins. Co., 123 Mass. 380; Franklin F. Ins. Co. v. Updegroff, 43 Penn. St. 350; Marion v. Ins. Co., 35 Mo. 148 ; Gerhauser v. Ins. Co., 7 Mo. 174.

The case of Claflin v. Com. Ins. Co., 110 U. S., especially, and several other cases are referred to by counsel for defendant, and, on examination, they are found to be really not in conflict with the general doctrine as we have stated it, for in each it is predicated that the swearing must have been knowingly or fraudulently made. In Glaflin’s case, for instance, it was set up in the answer that the facts sworn to “were wholly false, as said Murphy well knew.” And the court in the opinion, commenting upon this answer say: “A false answer as to any matter of fact material to the inquiry, knowingly and willfully made with intent to deceive the insurer, would be fraudulent. If it accomplished its result, it would be aJraud effected ; if it failed, it would be a fraud attempted.. And if the matter were material and the statement false, to the knowledge of the party making it, and willfully made, the intention to deceive the insurer would be necessarily implied, for the law presumes every man to intend the necessary consequence of his acts.” This accords with the general doctrine on the subject.

The burden of proof of fraud is on the insurer, who sets it up, and he will not be allowed by the form of his. *659plea to shift it. Of course, the question whether the facts show a willful and intentional misstatement of facts, made for the purpose of defrauding the insurance company, is one for the jury. — 1 Biddle on Insurance, .§442.

2. The question involved on the trial of the demurrers to the replications to the pleas numbered 3 and 4 is, where the policy is partly written and partly printed, and in the written part, the insurer insures “the stock of general merchandise of the assured such as is usually kept for sale in country stores,” and contains articles which are specified in the printed part, — such as benzine, fire-works, kerosene oil and gunpowder, — which are prohibited from being kept, whether it can be shown that such stock of general merchandise, includes the prohibited articles, and thereby defeat the prohibiting clause.

In the third plea, in which the breach of the policy is assigned, it is shown by the replication, that the provision for forfeiture for keeping benzine was printed, and so in the 4th as to fire-works ; and, there is not, in either plea, any allegation that the provision in respect to kerosene oil or gunpowder, also prohibited, was broken, or that either of these last named prohibited articles, as to which a permit to keep them, in limited quantities, was indorsed on the policy, were included in the same provision as the one in which benzine, or fire-works were included, and there is no allegation that the kerosene oil and gunpowder provision was written or printed; but construing the pleas most strongly against the pleader, we must presume, they were in a provision different from the benzine and fire-works provisions, and that they were printed.

In Bolman v. Lohman, 79 Ala. 67, it was held, that in interpreting instruments partly written and partly printed, the greater weight should be given to that which is written, for the presumption is, that greater attention was bestowed on the written parts ; that a printed form is intended for general use, without reference to particular objects and aims, and that' which is written is supposed to be dictated by the particular intention and purpose of the parties contracting. — Thornton v. Sheffield & B. R. R. Co., 84 Ala. 109.

In construing contracts of insurance, another settled *660rule of construction is, that courts, being strongly-inclined against forfeitures, will construe all the conditions of the contract and the obligations imposed, liberally in favor of the assured, and strictly against the insurer.— Piedmont & A. L. Ins. Co. v. Young, 58 Ala. 476; Ala. Gold Life Ins. Co. v. Johnson, 80 Ala. 467; Syndicate Ins. Co. v. Catchings, 104 Ala. 176. And go,it is held, that where the terms of a policy are susceptible, without violence, of two intepretations, the construction most favorable to the insured should be adopted; and, in a case where it is doubtful what goods aré covered by the policy, the doubt will be resolved against the insurer, and evidence will be admissible to resolve the doubt. — 1 Wood on Ins., 142; 2 May on Ins., § 420.

The foregoing do not in anywise conflict with other well understood rules for the construction of a poliGy of insurance, — that by the acceptance of the policy the assured is estopped to deny his assent to its express stipulations, (Brown v. Ins. Co., 86 Ala. 192; Pelican Ins. Co. v. Smith, 92 Ala. 430) ; and that, where a policy contains language of ambiguous or of doubtful meaning, or some of its terms are inconsistent with others, parol evidence of usage is admissible, so as to arrive at the intention, understanding and agreement of the parties, but that it can never overturn the positive requirements of the law, or the express contract of the parties. — Buyck v. Schwing, 100 Ala. 355; Richmond & Danville Railroad Co. v. Hissong, 97 Ala. 191-2; Barlow v. Lambert, 28 Ala. 708.

3. Wood, in his work on Insurance, in treating of repugnant stipulations as to the subject-matter of the'risk, says: “Where the written portion of the policy describes the property insured as of a certain class, and the property as described- embraces a class of articles ranked in the policy as hazardous, or which, by the printed terms of the policy, are prohibited, as if the goods are described as a stock, ‘such as is usually kept in a country store,’ and the printed portion of the policy prohibits the keeping of certain articles usually kept in a country store, the written portion of the policy overcomes the force of the printed stipulations, and the keeping of s,uch articles does not operate as a breach of the conditions of the policy. Thus, where a policy covered property described as a stdck ‘such as is usually kept in a general. *661retail store,’ and the keeping of gunpowder was prohibited by the printed portion of the policy, it was held that if gunpowder formed a part of the stock usually kept in a ‘general retail store,’ the keeping of gunpowder was not a violation of the conditions of the policy; ’ ’ and so of other prohibited articles coming within the class of articles described by general designation ; and he adds : “It may always be shown that such articles are usually kept as a part of the stock of the class insured, and if proved, the. printed prohibitory clause is overcome by the written description of the class of property insured.” 1 - Wood on Ins., § 64. Again, he says in section 69 : “Where there is anything in the written portion of the policy, or in the description of the property itself, that shows that any articles within the prohibited class are to be kept, the force of the printed clause is overcome, as the writing evidently expresses the understanding of the parties when the contract was actually made, while the printed portion of the policy only embodies the general terms upon which insurance, in the absence of special agreement, is made.”

May states the rule to the same effect, as follows : “And it may be stated as a general proposition that where, in the description of the subject-matter of insurance, a stock of goods or property embarked in a particular trade or manufacture, or any branch of business, is stated to be insured without qualification or exception, the policy covers all such special articles of merchandise, processes, practices, subordinate trades, and manufactures, as are necessarily or usually included in or incidental to the general subject-matter of insurance, notwithstanding the policy may provide, by a general printed stipulation, that if the premises shall be used for, or appropriated to the storing or vending of articles, or the carrying on of any trade, vocation or business denominated hazardous, extra hazardous or enumerated in the memorandum of special rates, the policy shall be void, and such included and incidental matters are within the excepted specifications.” — ! May'on Ins.,§ 239. The rule is based on what is presumed to be the intention of the parties, that the entire subject-matter with all its incidents is tobe protected, “ and upon the further presumption that the written special description of the particular subject-matter, whenever inconsistent with spe*662cial printed clauses, must control;” a proposition, lie adds, which, has been established and illustrated by numerous adjudged cases, to which he refers. To the same effect is Flanders on Insurance, 809.

Counsel for appellee relies much on the case of Steinbach v. Insurance Co., 12 Wall 183, which seems to be the leading case, usually cited as opposed to the rule as laid down above. In that case, the subject insured was described as, .“On his stock of fancy goods, toys and other articles in his line of business, * * * as a Germau jobber and importer. Privileged to keep fire-craters.” In the printed part of the policy, fire-works were prohibited, and articles of the class to which they belonged added 50 cents more tothe'rate per $100, and to be covered, were required to be specially written on the policy. The plaintiff proposed to prove, “that fireworks constituted an article in the line of business of a German jobber and importer.” In a very brief opinion, without reference to an authority, the court decided, that the evidence was inadmissible. It was assigned as a reason for so holding, that “the policy itself requires that fire-works shall be specially written in it. They are among the goods described as specially hazardous, and add 50 cents on the $100 to the ordinary rate of insurance,” and that it was impossible to think they were described by the general terms used in the policy,

This case is clearly distinguishable from the class of cases 'such as we have on hand, as was held by Gresham, D. J., in Stout v. Com. Union Ass. Co., 12 Fed. Rep. (Ind.) 554, and in Plinsky v. Germania F. & M. Ins. Co., 32 Fed. Rep. (Mich. ) 47. But, if the case cited does conflict with the general doctrine as'stated, it is opposed to the decisions of many of the State courts, and to the text books above referred to on the subject. It is not denied that there are decisions holding to a contrary view; but the preponderance and weight of authority seem to sustain the view we take. — Barnum v. Mer. F. Ins. Co., 97 N. Y. 188; Steinback v. Lafayette F. Ins. Co. 54 N. Y. 90. Without referring specially to the decided cases on the subject, they will be found collated under the sections in the text books to which ive have referred, and in 2 Biddle on Ins., § 752.

Our conclusion is, that the demurrer to plaintiff’s replications to pleas 3 and 4 were improperly sustained. *663There were other rulings on the pleadings, but those we have noticed are the only ones insisted on in argument, and the errors assigned as to the others are waived.

Reversed and remanded.