Glendale Woolen Co. v. Protection Insurance Co.

21 Conn. 19

• Court: Supreme Court of Connecticut
• Decided: June 15, 1851
• Status: Published

Opinion

Ellsworth, J.

We have delayed the decision of this case, that we might more fully reflect upon the important questions presented, and come to a decision that would be satisfactory to ourselves.

We shall not follow the learned counsel, over all the ground taken by them, in the argument; nor comment upon all the law of insurance which they have so earnestly pressed upon our notice, but only such, as we consider applicable and important in arriving at a just decision of the case in hand.

The contract of insurance, as all know, is a contract of indemnity, upon the terms and conditions specified in the policy of insurance. It is a peculiar contract—and one of hazard purely. The insurer undertakes, for a comparatively small premium, to guaranty the insured against loss or damage, upon the exact terms and conditions agreed on, and upon no other. The party called upon to pay in case of loss, may therefore justly insist upon the fulfillment of these terms; and if the plaintiffs can now bring themselves, fairly, within the conditions of the policy, as they insist they can, they are entitled to recover for the loss; but if they cannot, then they must admit they cannot recover; however well-meaning and upright, and however confident in their view of the terms and conditions of the policy. We may not make a new contract for the parties; but rather it is our duty to enforce and carry out one already made.

What that contract is, upon a just interpretation of the facts and provisions of this survey and policy, we consider entirely clear and certain.

But before entering upon this question, we remark upon another, much dwelt upon in the argument, and of general importance ; the distinction between a representation and a warranty. The former precedes, and is no part of the contract of insurance, and need be only materially true ; the latter is a part of the contract and policy, and must be exactly and literally fulfilled, or else the contract is broken and the policy becomes void. And although this distinction is not important, as we conceive, in this instance, nor the other point so much urged, that the policy is to be construed by the laws of Massachusetts, and not by the laws of this state, (though we think they are the same, in a case situated as this is,) it may not be unimportant to observe, that the above distinction,, if applied, in all its stringency and technical exactness, to fire policies, must, ere long, present questions of unusual interest and importance.

Fire policies are issued upon certain interrogatories and answers, denominated the survey, often extending over two or more pages, and embracing, not only the present, but the future condition of things, and the future conduct of the insured; while marine policies are usually taken out for a single voyage, or if on time, for one of short duration. We are by no means confident that representations in surveys, preceding the issuing of fire policies, extending, as they do, to the present and future condition of the property about to be insured, have been considered as technical warranties, to be true to the letter, for a long series of years, and not rather as representations, to be, at the time and thereafter, substantially exact and true. Nor are we certain, that a mere reference to these representations made in the body of the policy, in order to explain the rights and obligations of the parties, does, necessarily, change their character from representations to warranties. Fire policies are taken out in mutual offices, for a term of years, and in ordinary insurance companies, for one year or a longer period. If now all the interrogatories and answers, or survey, as it is called, are to be held to be warranties, to be kept to the letter during the continuance of the policy, and not in the nature of representations to be kept in substance and effect; and if this vital change in what is only preliminary, is to be brought about, by a mere reference, in the body of the policy, to the survey; then there is a principle of the law of marine insurance being applied to policies of a different character, which must ere long, as we have said, present questions of unusual interest and importance. If, on the other hand, the survey is held to be a representation or agreement, extending to the future, as well as the present, condition of things; then the insured will have no ground of complaint, as in that case, he will be holden only to a substantial compliance with his own agreement, which is but just and right.

This question has engaged the attention of courts elsewhere. In Houghton v. the Manufacturers Mutual Fire Insurance Company, 8 Metc. 114., there were 36 printed questions annexed to the policy—among them were these: “What provision is made for extinguishing fire by engines, pumps, water-casks, buckets or otherwise?” Answer—“Water-casks are placed in each room containing water, and pails are kept in each room. There is a force-pump inside to convey water into the second and third stories.” “Is a watch kept constantly in the building? If no watch is kept constantly, state what is the arrangement respecting it.” Answer—“No watch is kept in or about the building; but the mill is examined thirty minutes after work.” “During what hours is the factory worked?” Answer—“Five o’clock A. M. to 8½ o’clock P. M. Sometimes, extra work will be done in the night.” The plaintiffs then claimed, that the policy and application were to be construed together, in order to determine what was the contract of the parties—that the statements made in the application, and especially the answers to the questions, were stipulations in the nature of conditions precedent, for the truth of the matter stated, so far as they were material to the risk; and if not true, although not wilfully false, nor made with intent to deceive, they nevertheless discharge the underwriters; that so far as these answers stated usages, practices and modes of conducting business at that factory, in the nature of precautions against fires, and tending to diminish the risk of fire, the insured were bound to observe all such usages and modes of conducting their business; and continue to use all such precautions; and if they failed so to do, the underwriters were discharged.

The court held, 1. That the policy, by the manner in which it refers in terms to the application and representations, does legally adopt and embody them, as part of the contract, to the same effect as if they were recited and set forth at large in the policy. 2. That the application and various answers contained in it, being termed "representations” in the policy, are rather to be regarded as having the legal effect of representations than of warranties, as understood in the law of marine insurance, though partaking, in some measure, of the character of both. They are like representations in requiring that the facts stated shall be substantially complied with, but not like warranties in requiring an exact and literal compliance.

These answers were held to be embodied in the policy as a part of the contract of insurance, and they would hence, strictly, be warranties, in marine policies, to be satisfied only by an exact and literal performance. But this consequence is avoided, by holding the answers to be representations, although for the future, and although incorporated in the policy itself. They were obligatory only, as an executory undertaking, satisfied by performance in substance and effect.

In the Farmers Insurance and Loan Company v. Snyder, 16 Wend. 481., the question was, whether a certain survey referred to, thus, in the policy: “more particularly described in application and survey furnished by themselves (the plaintiffs), filed, No. 938, in the office of the underwriters"—was a representation, or a warranty. It was adjudged to be a part of the contract, and therefore not a representation collateral and preparatory to the contract; yet the chancellor, in giving the opinion of the court, would not admit it was a warranty. His language is:—“I have doubts whether the principle of construing every matter of mere description contained in the body of the policy, although not material to the risk, into an express warranty, which is to be literally complied with, should be applied, with the same strictness, to fire policies.” P. 493.

In Alston v. The Mechanics and Mutual Insurance Company of Troy, 4 Hill 330., the chancellor, in giving the opinion of the court, goes at great length into the distinction between representations and warranties. He utterly repudiates the idea of a promissory representation, and insists that no such thing is recognised, by any respectable authority whatever; while at the same time, if the promissory representation is embodied in the policy, so as to be a part of the contract, it will be binding as something in the nature of a warranty, or a representation, as in Massachusetts, to be substantially and materially true. P. 342.

In Wood v. The Hartford Fire Insurance Company, 13 Conn. R. 533. 545. this court seem to have applied the strict technical rules of marine insurance to fire policies, and they accordingly held, that language in a policy as follows: “upon the one undivided half of the paper-mill owned by the plaintiff in Westville in New-Haven," under the circumstances, made a warranty, and that the mill must continue to be a paper-mill, neither more nor less, or the policy would immediately become void. This application of the rule, if the court concurred in the views expressed by its organ, seems to maintain the entire similarity between marine and fire policies. And this is undoubtedly true, if it be conceded, that the description and reference in the policy, makes a warranty. But we are not aware, that the court meant to hold, that in all cases, every thing which gets into a policy, as description or mere reference, whether survey or answers, is an exact warranty, and not representation. This would be a very broad principle of law, of great importance, demanding mature and careful consideration, before we sanction it, and one which we are not called upon to decide, in this case; because, however the general principle may be, here there is no question of the kind for decision.

It is certain that in this case, the plaintiffs have not kept their agreement in substance or effect. And besides, the parties have agreed, in the 18th condition of the policy, that, the survey shall be treated as a warranty.

We would add further, that the general question is elaborately discussed in Jennings v. Chenango County Mutual Insurance Company, 2 Denio 75., and many cases are commented on. The words of reference there in the body of the policy are: “Reference being had to the application &c. for a more particular description of the conditions annexed, as forming a part of this policy.” The court held, that as the survey was made a part of the policy, then, by the acknowledged rule of marine insurance, it became a warranty, and must be literally true, and so continue. Many cases are likewise cited, in the learned opinion of the court, given by Jewett, J. going to shew, that most, if not all, the evidence offered and relied upon, by the plaintiffs, in the case before us was not admissible or important,—such as prior or contemporaneous conversation or agreements between the parties, the knowledge of the agent—local usages, and any and every circumstance or collateral proof, intended to qualify or contradict the written contract, in the survey and policy.

The same views are presented, by the chancellor, in giving the opinion of the court already referred to in Aston v. The Mechanics Mutual Insurance Company.

We come, then, to the immediate question before us. What is the contract, as to the particular in question, in this policy of insurance? We say it is, in our judgment, an exact, clear and certain engagement, by the insured, that they will keep a watchman in their mill through the hours of every night in the week, from 8 P. M,, to the usual hour of commencing work in the morning. If this is the true engagement of the plaintiffs, then they cannot recover on the policy; for it is conceded by them, that they had no watchman in the mill after 12 o’clock Saturday night, and the mill was burnt down between 3 and 4 o’clock the next morning; which doubtless would not have happened, had the watchman remained, as he should have done. If we have the precise contract which the parties chose to make for themselves, and there be no imperfection or ambiguity in the language used to express the meaning of the parties; clearly we have no right to depart from the language, and travel out of the contract, to see if the parties did not, after all, mean something different from what is written. Why, we ask, resort to inferior and secondary evidence, such as inferences from supposed usages, or circumstances or the knowledge, or the talk, of the parties, at the time of entering into the contract? These may be proper enough, where there is ambiguity or uncertainty in the language used, as when technical and scientific words are used, or terms of art, or trade, or foreign language, or phrases, which require an interpretation or explanation, in order to know what the parties meant. But this is not the case. And hence, the numerous authorities and elementary writers read by the plaintiffs’ counsel, shewing that collateral evidence may be, in certain cases, resorted to, to interpret the terms used, are quite inapplicable and unimportant. See Stoever v. Whitman's lessee, 6 Binn. 416. Allen v. Dykers, 3 Hill, 593. 596. The Schooner Reeside, 2 Sumn, 567. 569. Macomber v. Parker, 13 Pick. 175. 182.

The rule is well established, that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversation, or circumstances, or usages &c., in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme. Higginson v. Dall, 13 Mass. R. 96. Whitney v. Haven, Id. 172. Wiggin v. Boardman, 14 Mass. R. 12. Cheriot v. Barker, 2 Johns. R. 346. Atherton v. Brown, 14 Mass. R. 152. Weston v. Emes, 1 Taun. 115. Flinn v. Tobin 1 Mood. & Malk. 367. Parks v. General Interest Insurance Co. 5 Pick. 34. Barber v. Brace, 3 Conn. R. 9.

We must first be convinced that there is doubt and ambiguity in the writing, or we cannot admit inferior evidence to explain or contradict what is written. This principle constitutes the great difficulty in the plaintiffs’ case. We know not how to get around it, or to surmount it; and we must not reject or evade it. The plaintiffs must first satisfy us, as we say, that the contract is imperfect and ambiguous, or we cannot, with any consistency and fairness, help them to subject the defendants.

The defendants insist, that the contract is not only certain, but just as it should be made, and as they understood it was to be made; that they expected to have a watch, each night in the week, and through the night; and if we are to go into reasons, that, during Saturday and Sunday nights, the mill is as much exposed to spontaneous combustion certainly, and more exposed from attempts by incendiaries, than at other times in the week; and they earnestly insist, that the plaintiffs shall not erase from the policy the half of Saturday and Sunday nights. We acknowledge that we feel pressed by this view of the case, and we find no answer to it in the argument of the plaintiffs’ counsel. As the counsel so earnestly insist we are in error, we look again to see if we are; but we find none. The language in the 8th interrogatory and answers, (for here is the imperfection and mistake, if anywhere,) used by the insured, leaves room for hesitation or doubt. If language can express thought, it is expressed in this instance. The survey begins “plain and definite answers are requested to each of the following interrogatories.” “Please be particular.” Then the interrogatory is—“Is there a watchman in the mill during the night?” The word “during” is to be construed with reference to the subject matter. If one were to promise another, that he would do some act, such as execute a deed, or pay a sum of money, during the month of January, the word means a point of time between the first and last days of January:—but, in a deed conveying land to a woman during her widowhood, it means the whole time, so long as the grantee shall remain unmarried. So a soldier enlisting into the army during the war, is to serve throughout the war. But if we say, a man was killed during the war, or that a certain battle was fought during the war, we mean some point of time between the commencement and end of the war. So in this survey, what did the underwriters aim at, in this interrogatory? We think they sought to know, if there was a watch kept up all the night, not apart of it, or for one period of time in the hours of the night. But the interrogatory proceeds: “Is there a good watch-clock?” Here we find something that is to speak for every hour of the night. It is well known, that a watch-clock is so constructed, that at an exact time in each hour of the night, the watchman can insert a plug into a hole that just then appears through the face of the clock, and after that, it is covered and concealed, so that the plug cannot, by any possibility, be inserted without destroying the clock itself; and so the clock will disclose the fatal truth, in the morning. If the watchman has slept or absented himself, he is betrayed. Does not this prove the meaning of the word “ During?” Look now at the answer. “There is a watchman, nights—no clock—bell is struck every hour from 8 P. M. till it rings for work in the morning.” Every hour in the night then is included in this survey.

The interrogatory, up to this point, having embraced each and every hour of the night, proceeds: “Is the mill left alone, at any time after the watchman goes off duty in the morning, till he returns to his charge at evening? The answer is “only at meal-times, and on the Sabbath, and other days, when the mill does not run.” We feel confident this last interrogatory relates only to day-time; for the words are, “after the watchman goes off duty in the morning till he returns to his charge at evening.” We cannot think, that any part of the night is excepted from the vigilance of the watchman.

Is there any more ground for the plaintiffs’ other claim, that one half of Saturday and Sunday nights are to be excluded from the watch? We see nothing that indicates such an exception. The language of the parties does not; the reason of the thing does not. The language is general—during the night. What nights? all nights—one as much as another. And why draw a distinction, contrary to the language in its plain import—and the reason of the thing too? Why is a watch required any night? For the same reason that exists for every night. And there is an additional reason, as we have already mentioned, for a watch during Saturday and Sunday nights. If however, in this particular, there be a shade of difference, it is too slight and unimportant for us to proceed upon, and impose a restriction upon language, which is general and unqualified.

But it is said, the second part of the interrogatory and answer, shows, that these portions of the two nights are to be excepted. To us it appears quite the reverse. It is obvious, the second part of the interrogatory has nothing to do with a watch, during the night. The first part is expressly occupied about the night; and, as we may say, exhausts that topic and subject matter; and so does its answer. The second part of the interrogatory then follows; and the inquiry is, as to the time after the watchman goes off duty in the morning till he returns to his charge at evening-“i. e. is the mill ever left alone in the day time?” The answer is, in substance and meaning, never, except at meal-times, and the day of the Sabbath and other days. It does not reach back to the first part of the interrogatory, as is claimed, departing from the subject matter of enquiry, to say what is done in night season, either one night or another. It is what is done in the day-time? The nights have been already disposed of. We say, then, the 8th interrogatory covers every night, and every hour of the night; every day, and every hour of the day; and that the answer, by excepting only meal-times, the day time of the Sabbath and other days when no work is done, leaves a clear engagement that at all other times, there is to be a watchman or workmen in the mill.

This engagement, as we interpret it, might have been considered, by the underwriters, as important, if not indispensable, in giving terms of insurance; and we cannot, therefore, disregard it, in meting out even justice to the contending parties.

According to these views, then, it is obvious, that the superior court was correct in the course pursued; and that no sound objection lies to the principles of law laid down to the jury.

If indeed the survey was to be taken in connexion with a general custom, claimed to prevail in mills of this character, then too there was no error; for such evidence was received, by the court; and the jury, under the instructions of the court, found there was no such custom in fact. On what possible ground the plaintiffs could claim, that evidence of a practice in their particular mill, or usage within any defined locality, as in the county of Berkshire, &c. even if brought to the knowledge of the defendants’ agent, (and his authority to bind the defendants, by such knowledge, we do not decide,) should be received, and when received, vary the existing contract, we know not. All previous and cotemporaneous conversation, as a part of the final contract, is wholly unimportant and inadmissible; nor is it admissible as matter of representation; for the survey contains that; and the survey may not be contradicted, by either party. We repeat, the parties made their own contract in the case of this mill; and so long as the terms of it are clear and certain, it must put an end to all strife about what was intended.

It is claimed by the plaintiffs’ counsel, that the statute of Massachusetts respecting the observance of the Sabbath, has a bearing upon the construction to be put on the language of the survey. We do not so understand it. We do not believe there is any statute in Massachusetts making it unlawful to keep a watchman in this mill according to the survey, as we interpret it; and if there was, the contract to keep such a watch every night, and every hour of the night, is too plain to be denied; and is, besides, in the nature of a precedent condition, which must be fulfilled, or the underwriters are discharged.

We do not advise a new trial.

In this opinion the other judges concurred.

New trial not to be granted.