59 Conn. 41 | Conn. | 1890
This is an action brought to recover upon a fire insurance policy on a stock of merchandise. The complaint alleged the plaintiffs’ ownership ; the execution of the policy by the defendant in consideration of a premium paid; a fire; the filing of proof of loss; and that the defendant had failed to pay. The answer is as follows :—
“ The defendant admits all the allegations contained in the plaintiffs’ complaint.
“First Defense. On the ninth day of March, 1888, the plaintiffs applied to an agent of the defendant, at Hartford, Connecticut, for insurance on the property described in said*44 policy, and said agent thereupon executed and delivered the said policy to the plaintiffs, upon the condition that said policy should not become effective and in force until it was approved by the proper officers of said company at the home office thereof, at Newark, New Jersey, and said policy was received on ‘said condition ; afterwards, on the 13th day of March, 1888, the said officers, at the home office, refused to approve said-issue of said policy, and the said agent of the defendant so notified the plaintiffs, and notified them that said policy was null and void, and demanded the return of the same, which was refused.”
There was a further defense, but it was afterwards abandoned. The plaintiffs’ reply denied the allegation of the first defense, thus forming a single and distinct issue. The case was tried to a jury, which returned a verdict for the plaintiffs, and from the judgment rendered thereon the defendant appeals.
The defendant on the trial, upon the pleadings, claimed the right to begin, and to open and close the argument. The court overruled this claim, and permitted the plaintiffs to go forward in evidence and argument. Of this the defendant complains, and not without good reason as we think.
The court charged the jury “ that all the allegations of the complaint were admitted by the pleadings, and that the burden of proof was upon the defendant to make out its defense by a preponderance of evidence.” This the defendant admitted and claimed, and it is undoubtedly correct and in plain conformity with the provisions of section 6, part 3, of the Rules under the Practice Act, on page 16 of the volume containing the act, by which it clearly appears that such a defense as the defendant interposed could not have been proved under either a general or special denial of the complaint, but required to be specially alleged. That notwithstanding this the court should have denied the defendant the right claimed appears to us to have been in direct contravention of section 3 of part 3 of the General Rules of Practice, which provides that “the counsel in support of the affirmative of an issue of fact will be entitled to begin the
The policy described in the complaint contained this provision, being paragraph 5, section 1:—“ If any broker, or other person than the assured, have procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance.” The defendant, as the record states, “ offered evidence to prove that one Frazier, a member of the firm of Webster & Co., who were general insurance agents in Hartford, applied to one Dillingham, who was the general agent of the defendant in Connecticut, to procure the policy in question for the plaintiffs, and that it was agreed between Dillingham and Frazier that the policy should not take effect and be a binding policy until the risk was accepted at the home office of the defendant in Newark, New Jersey, and that the policy was delivered upon such condition ; that the defendant company refused to accept the risk, and that notice thereof was given to Webster & Co. within a few days after the date of the policy, and that they were requested to re-deliver the policy to Dillingham, as never having become binding; and the defendant claimed that, by force of that provision in the policy, Webster & Co. and Frazier, in applying to Dillingham to write the policy, were the agents of the plaintiffs, and that any agreement made with them by Dillingham in
As it was not claimed that the plaintiffs personally knew of the condition upon which, as it was alleged, the policy was delivered, or that notice that the defendant company declined to accept the risk ever actually reached them, the question whether Frazier was the agent of the plaintiffs or of the defendant became vital. This was a question of law, depending on the facts in the case, and'the answer made by Frazier, so far as it was responsive, undertook to state no facts, but onty the conclusion of the witness. This was clearly inadmissible.
But the most important question concerns the construction and effect of the clause referred to in the policy. Upon this point the defendant requested the court to charge the jury as follows :—
“1. Under paragraph 5, section 1, of the policy, if the jury find that Webster & Co. procured this policy from Dillingham for the plaintiffs, then Webster & Co. were the agents of the plaintiffs and not of the defendant, and their acts and knowledge were the acts and knowledge of the plaintiffs in relation to this policy.
*47 “ 2. If the jury find that the policy was delivered to Webster & Co. upon condition that it was not to take effect until approved by the company, or subject to the approval of the company, and on March 13th the company refused to approve it, the policy never became a valid contract, and the jury must find a verdict for the defendant.”
The court did not so charge the jury, but instructed them, upon this subject, in these words :—
“ If the law is, as I understand it to be, that, in order to a rescission of the contract, notice by the defendant to Webster & Co. alone would be insufficient, but that such notice must be given to the assured, I know not why, on principle, it was not just as obligatory upon the defendant to advise the plaintiffs, the assured, that the}*- did not consider the policy good and valid upon its delivery, and this upon the theory that the agency of Webster & Co. ceased upon the delivery of the policy. Such notice was confessedly not given the plaintiffs, the insured.
“If you find that Webster & Co., when they procured the policy from Dillingham, were not acting as the agents of the plaintiffs, then no agreement or understanding between Dillingham and Webster & Co. which was not communicated to or known by the plaintiffs, can in any way affect the right of the plaintiffs to recover on the policy according to its terms.”
We will assume that the admission of counsel for the plaintiffs, contained in their brief, states the law correctly as follows:—“Courts have held that by the acceptance of a policy of insurance by one insured, in which is contained a provision such as is contained in this policy, a broker or other person having procured the policy should be deemed the agent of the assured. But such a provision is limited to the acts of the broker or other person in obtaining the insurance policy, and terminates upon the delivery of the policy to the assured; it does not extend to any matters which may arise between the assured and the insurer after the policy has been so delivered; but after the policy has been once delivered to the insured the agency so provided
If however the failure of the company within a reasonable time to give notice of approval or disapproval, would render the policy valid in the hands of the insured, (concerning which we express no opinion,) it is not because the polic3r becomes binding without approval, contrary to the express condition, but because such approval would be presumed, and therefore the polic3' becomes effectual as of the date when such presumption attaches, a reasonable time having then elapsed, precisely as if notice of such approval had then been received. The delivery, before that time conditional and inchoate, then, and not until then, becomes absolute and complete, and the broker then, and not before, ceases by reason of such perfected delivery to be the agent of the insured. Until such reasonable time has elapsed, being the agent of the insured, notice to him of a declination to accept must be held notice to his principal. While it is therefore true, that, “ in order to a rescission of the contract, notice by the defendant to Webster & Co. alone would be insufficient, but such notice must be given to the insured,” it does not follow, as the court assumed, that on principle it was just as obligatory that the plaintiffs should have had personal notice of the declination to accept, since in the one ease, the policy having been delivered as a present and valid contract, the agency ended, and in the other, the policy not having been so delivered, the agency continued.
In McFarland v. Sikes, 54 Conn. R., 251, this court, referring to the rule that parol evidence is inadmissible to contradict or vary a written contract, said “ A written contract must be in force as a binding obligation to make it subject to this rule. Such a contract cannot become a binding obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then it does not become a binding obligation until the condition upon which its delivery depends has been fulfilled. If the payee of a note has it in his possession, that fact would be primd facie evidence that it had been delivered ; but it would be only primd facie evidence. The fact could he shown to be otherwise, and by parol evidence.”
This language, and other expressions of the court in the opinion, and the cases therein cited, are fully applicable to the case before us.
We think the instructions asked for in the requests cited should have been given to the jury, and that the charge made was erroneous. A new trial is therefore granted.
In this opinion the other judges concurred.