Paixe, J.
We shall not attempt to determine'how far a plaintiff in an action on a policy of insurance is bound to introduce proof, in the first instance, of a continued compliance on his part with all the provisions in the policy, in order to avoid a motion for a nonsuit. It has been said by a writer on this subject, who refers to authorities upon the point, that he must,. in the first instance, prove a compliance “with express warranties and conditions precedentP 2 Phillips on Insurance, p. 653. But these companies have adopted the practice of inserting a provision that every thing said by the [303]*303assured, -in reference to the subject-matter, . should be considered as an express and continuing warranty during the life of the policy. And it would be intolerable, if, by reason of this, plaintiffs in such cases were bound in the first instance to introduce affirmative proof of the 'truth of every representation made, and of a continuous compliance with every answer as to the mode of using the property. There are some things which, from the nature of such contracts, are conditions precedent, and a compliance with which the plaintiff ought to prove, to establish a prima facie case. There are others which are from their nature conditions subsequent, or exceptions to the liability of the company, and which should properly be presented as defenses. And whether the companies, by inserting this provision that every thing said by the assured shall be an express warranty, can change the essential character of these provisions, and impose on plaintiffs the burden of proving affirmatively the truth of every statement made, in order to establish a prima facie case, may constitute a question ,of some interest when it becomes necessary to decide it.
But in this case the motion for a nonsuit was overruled. And the defendant assumed the burden ot showing a non-compliance by the plaintiffs with all the .conditions of the policy'in respect to which a non-compliance was claimed. Both parties introduced fully their evidence upon this subject. The question then is, whether, upon the case as it was finally submitted to the jury, the appellant has any thing to complain of. It is a familiar rule, that even when, strictly speaking, a motion for a nonsuit ought to have been granted for some defect in the proof, yet, if it is overruled and the defect subsequently supplied, there is no ground for reversal.
The principal reason why the company denies its liability is, the alleged fact that the assured did not comply with the undertaking to keep a night watchman, and to keep the factory running, and to have the pump [304]*304in constant readiness for use. The property insured was a stave factory worked by steam. This alleged undertaking of the assured to keep a watchman constantly, to’ keep the factory running through the life of the policy, and to have the pump always in readiness for use, is founded upon the answers to the questions ordinarily put in respect to the mode of using the property.
The answer to the question, “During what hours are the premises worked ?” was, “Prom 6 a. m. to 7 p. m. ; sometimes from 7 p. M. to 6 A. M.”
To the question, “ Have you a night watchman always on duty?” the'answer was, “We have.”
It was also stated that the building was not left alone at any time after the watchman went off duty in the morning until he returned at evening.
It was said, also, that there was a good force pump on the premises expressly for putting out fire, and that it was “at all times in condition for immediate use.™ Also, that it was tried every two or three days to know if it was in order.
It may be true, as claimed by the appellant, that, according to the current of authority, these statements would be held to be continuing warranties that the same state of things should continue during the life of the policy. But it has always seemed to me that to apply'that rule to cases of this character was to impose on the transaction a construction which it does not fairly or reasonably bear, and to make a contract for the parties which they did not make for themselves.
■Both the questions and answers in such cases purport to relate only to the then existing condition of things. Notwithstanding this, it is entirely reasonable and just to say, that, in respect to those things that, according to the usual course of the business, are permanent and continuing, the parties intend to agree that they shall be kept in the same condition. The assured undertakes to make no' changes in the condition of the premises or [305]*305the mode of using them, outside of the usual mode of conducting the particular business.
But it seems to me a stretch of construction to say that the assured undertakes, by such answers, to continue to use the property, through the life of the policy, in the precise manner, then indicated, though such continued use would be contrary to the well-known usage and nature of the particular business.' Thus, suppose a policy should be taken in the summer for one year on a steamboat used in navigation? Suppose a similar class of questions should be put and answered? The owner is asked, “During what hour^ is the boat run?” He answers, “It is run night and day.” He says that a regular watch is kept at all hours of the night; that there are pumps worked by the engine, ready at all times for immediate use to extinguish fires; and that a dozen hands are employed on the boat. Would there be any reason in holding that this was an undertaking by the assured that the same condition of things should exist through the winter months, when the boat was not used, but was frozen in the ice of some river? Manifestly not. It would be absurd to assume that the parties so intended or understood.
The same thing seems equally true here. It was proved that the factory was never run in the winter. This fact was well known to the agent of the company, and the assured knew that he understood it. It is true of most of the mills that are engaged in the great lumbering business of this state. When, therefore, a policy is taken out upon one of these mills, or a factory like this, while it is running, and questions are asked and answered truly as to the description of the property and the mode in which it is then used, it would be as unreasonable to say that they amounted to a warranty by the assured that the same state of things should continue during the winter months, when according to the usual custom and course of the business the property was not used at all, as it would be to say so in the case [306]*306of the steamboat. I agree fully with the remarks of the circuit judge upon this point, who gave it as his opinion that the only reasonable construction of such a policy was, that “those provisions in relation to the number of hands employed, the force pump and the night watch, related only to the time or season of the year when that mill, or those of a similar character, were operated.”
Upon this subject I have given my own views, as, in consequence of other facts appearing in the case, it became unnecessary for the court to decide the question. There seems to be a conflict of authorities upon the point, and there are certainly some very respectable ones which would sustain the construction that I have suggested ought to be put upon this policy. See Schmidt. Insurance Co., 41 Ill. 295, and cases cited.
Free access — add to your briefcase to read the full text and ask questions with AI
Paixe, J.
We shall not attempt to determine'how far a plaintiff in an action on a policy of insurance is bound to introduce proof, in the first instance, of a continued compliance on his part with all the provisions in the policy, in order to avoid a motion for a nonsuit. It has been said by a writer on this subject, who refers to authorities upon the point, that he must,. in the first instance, prove a compliance “with express warranties and conditions precedentP 2 Phillips on Insurance, p. 653. But these companies have adopted the practice of inserting a provision that every thing said by the [303]*303assured, -in reference to the subject-matter, . should be considered as an express and continuing warranty during the life of the policy. And it would be intolerable, if, by reason of this, plaintiffs in such cases were bound in the first instance to introduce affirmative proof of the 'truth of every representation made, and of a continuous compliance with every answer as to the mode of using the property. There are some things which, from the nature of such contracts, are conditions precedent, and a compliance with which the plaintiff ought to prove, to establish a prima facie case. There are others which are from their nature conditions subsequent, or exceptions to the liability of the company, and which should properly be presented as defenses. And whether the companies, by inserting this provision that every thing said by the assured shall be an express warranty, can change the essential character of these provisions, and impose on plaintiffs the burden of proving affirmatively the truth of every statement made, in order to establish a prima facie case, may constitute a question ,of some interest when it becomes necessary to decide it.
But in this case the motion for a nonsuit was overruled. And the defendant assumed the burden ot showing a non-compliance by the plaintiffs with all the .conditions of the policy'in respect to which a non-compliance was claimed. Both parties introduced fully their evidence upon this subject. The question then is, whether, upon the case as it was finally submitted to the jury, the appellant has any thing to complain of. It is a familiar rule, that even when, strictly speaking, a motion for a nonsuit ought to have been granted for some defect in the proof, yet, if it is overruled and the defect subsequently supplied, there is no ground for reversal.
The principal reason why the company denies its liability is, the alleged fact that the assured did not comply with the undertaking to keep a night watchman, and to keep the factory running, and to have the pump [304]*304in constant readiness for use. The property insured was a stave factory worked by steam. This alleged undertaking of the assured to keep a watchman constantly, to’ keep the factory running through the life of the policy, and to have the pump always in readiness for use, is founded upon the answers to the questions ordinarily put in respect to the mode of using the property.
The answer to the question, “During what hours are the premises worked ?” was, “Prom 6 a. m. to 7 p. m. ; sometimes from 7 p. M. to 6 A. M.”
To the question, “ Have you a night watchman always on duty?” the'answer was, “We have.”
It was also stated that the building was not left alone at any time after the watchman went off duty in the morning until he returned at evening.
It was said, also, that there was a good force pump on the premises expressly for putting out fire, and that it was “at all times in condition for immediate use.™ Also, that it was tried every two or three days to know if it was in order.
It may be true, as claimed by the appellant, that, according to the current of authority, these statements would be held to be continuing warranties that the same state of things should continue during the life of the policy. But it has always seemed to me that to apply'that rule to cases of this character was to impose on the transaction a construction which it does not fairly or reasonably bear, and to make a contract for the parties which they did not make for themselves.
■Both the questions and answers in such cases purport to relate only to the then existing condition of things. Notwithstanding this, it is entirely reasonable and just to say, that, in respect to those things that, according to the usual course of the business, are permanent and continuing, the parties intend to agree that they shall be kept in the same condition. The assured undertakes to make no' changes in the condition of the premises or [305]*305the mode of using them, outside of the usual mode of conducting the particular business.
But it seems to me a stretch of construction to say that the assured undertakes, by such answers, to continue to use the property, through the life of the policy, in the precise manner, then indicated, though such continued use would be contrary to the well-known usage and nature of the particular business.' Thus, suppose a policy should be taken in the summer for one year on a steamboat used in navigation? Suppose a similar class of questions should be put and answered? The owner is asked, “During what hour^ is the boat run?” He answers, “It is run night and day.” He says that a regular watch is kept at all hours of the night; that there are pumps worked by the engine, ready at all times for immediate use to extinguish fires; and that a dozen hands are employed on the boat. Would there be any reason in holding that this was an undertaking by the assured that the same condition of things should exist through the winter months, when the boat was not used, but was frozen in the ice of some river? Manifestly not. It would be absurd to assume that the parties so intended or understood.
The same thing seems equally true here. It was proved that the factory was never run in the winter. This fact was well known to the agent of the company, and the assured knew that he understood it. It is true of most of the mills that are engaged in the great lumbering business of this state. When, therefore, a policy is taken out upon one of these mills, or a factory like this, while it is running, and questions are asked and answered truly as to the description of the property and the mode in which it is then used, it would be as unreasonable to say that they amounted to a warranty by the assured that the same state of things should continue during the winter months, when according to the usual custom and course of the business the property was not used at all, as it would be to say so in the case [306]*306of the steamboat. I agree fully with the remarks of the circuit judge upon this point, who gave it as his opinion that the only reasonable construction of such a policy was, that “those provisions in relation to the number of hands employed, the force pump and the night watch, related only to the time or season of the year when that mill, or those of a similar character, were operated.”
Upon this subject I have given my own views, as, in consequence of other facts appearing in the case, it became unnecessary for the court to decide the question. There seems to be a conflict of authorities upon the point, and there are certainly some very respectable ones which would sustain the construction that I have suggested ought to be put upon this policy. See Schmidt. Insurance Co., 41 Ill. 295, and cases cited.
Those other facts are, that the whole truth in relation to these matters was fully disclosed to the agent of the company by the assured, and that he himself prepared the papers, filled up the application, and wrote down such portions of the answers as he considered material or important. The assured explicitly informed him that the night watch was kept, and the pump examined and kept in readiness for use, only when the mill was running. This fully appears by his own testimony, and he says, probably with good reason, that he did not write that down in the answers, because he considered that the risk was much less .when the factory was not running, even without any of these precautions, than it was when running with them all.
The recent cases upon this subject fully sustain the position, that, upon this state of facts, the company is responsible for the accuracy and omissions of its agent, even without any express undertaking to be so, and that it cannot avoid liability by reason of any discrepancy between the real facts as disclosed to him and his presentation of them in the papers. The tendency of modern decisions has been strongly to hold these com[307]*307panies to that degree of responsibility for the acts of the local agents which they scatter through the country, that justice and the due protection of the people demand, without regard'to private restrictions upon their authority, or to cunning provisions inserted in policies with a view to elude just' responsibility. See the following authorities: Rowley v. Ins. Co., 36 N. Y. 550; Columbia, Ins. Co. v. Cooper, 50 Pa. St. 331; Viele v. Germania Ins. Co. (supreme court of Iowa), Western Jurist, October, 1868, p. 297; Franklin v. Atlantic Fire Ins. Co., 42 Mo. 457 ; Ins. Co. v. Schetteler, 38 Ill. 166.
Some of these cases are directly to the effect that, upon the facts here presented, the company would be liable for a loss happening as this did, after the factory had-stopped running, although there was no night watch, and no pump in readiness'for use.
We think the same conclusion follows, in this case, from an express stipulation in the policy. The company there agrees, that it “will be responsible for the accuracy of surveys and valuations made by its agents.” ■Its counsel'claim that the word “ survey,” as here used, means only that which was merely matter of measurement or description. But we think, whatever may be its strict meaning, it has acquired in insurance cases a general meaning, which includes what is commonly called the application, which contains the questions propounded on behalf of the company and the answers of the assured. It was evidently used in this general .sense in this policy. It first states what the application must contain. It then declares that any false description by the assured, or omission to make known any fact material to the risk, shall render the policy void. And then immediately follows the provision above quoted: “But the company will be responsible for the accuracy of surveys made by'its agents.”
The context shows that the subject-matter to which this clause had reference was the application. And the entire provision relating to .that subject was evidently [308]*308intended to inform the assured what the application must contain, and for what failures he would be held responsible, but also to inform him that, where those applications were filled out by the agents, in accordance, with the usual practice, the company would be responsible for their accuracy, where the facts were fully and truly represented to them. Notwithstanding what is said in Denny v. Ins. Co., 13 Gray, 497, we think this was the evident meaning of the word “survey” as used in this provision. And the case of Glendale Man. Co. v. The Protection Ins. Co., 21 Conn. 19, which was cited by the appellant upon another point, is a direct authority to show that the word has this general meaning. The court says, on page 32: “ Eire 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.”
We have no hesitation, therefore, in holding that this is the true meaning and effect of this clause in the „ policy. And it only shows that in this case the company expressly assumed a responsibility, which, in the absence of such an assumption, the court, upon the facts of this case, would have imposed upon it. And the company in such case is held liable, not upon the ground that parol evidence may vary the written contract, but that the company is estopped from taking advantage of the blunders of its own agents to avoid liability, after it has itself received the full benefit of the' contract.
In this case there is no ground for the objection that parol evidence is admitted to vary the contract, for the contract itself, in expressly providing that the company would be responsible for the accuracy of surveys made by its agents, evidently contemplated an inquiry into the question, whether the agent, in filling out the application, had accurately stated the answers of the assured.
[309]*309In respect to the claim that the proof of loss was not in time, the court instructed the jury correctly, both as to what constituted a strict compliance with the provision, and what would'constitute a waiver on the part of ■ the company. The subsequent conduct of the company was fully sufficient to warrant the jury in finding a waiver, if there was any defect, and the secretary expressly testified that they made no .objection upon that ground.
This disposes of all the questions that seem material to be .noticed.
By the Court. - — The judgment is affirmed.
The defendant’s counsel moved for a rehearing, on the ground that the court had not discriminated between a waiver of the proofs of loss in the form required by the condition^ of the policy, and a waiver of the immediate notice of loss there required; and they contended that the plaintiff’s own evidence in this case showed that the notice was not given forthwith, and that there could be no waiver of the defense on that ground, except by an express contract to that effect upon a new. consideration. To this point they cited 18 Wis. 587; 11 Mo. 278 ; 29 Pa. St. 198.
The motion.for a rehearing was denied at the January term, 1870.