Trustees of the First Baptist Church v. Brooklyn Fire Insurance

28 N.Y. 153

• Court: New York Court of Appeals
• Decided: September 5, 1863
• Status: Published

Opinions

This action was brought to recover the sum of $5000, alleged to have been insured by the defendants upon the plaintiffs' church edifice which was consumed by fire in September, 1848. There was no written contract of insurance existing at the time the church was burned, but it had been insured one year from July 21, 1855, by a policy issued by the defendants at that date, and the instrument contained the usual clause that the insurance might be continued for such further time as should be agreed on, by the payment of the premium and by having it indorsed thereon or a receipt given therefor. It had been continued by a renewal receipt for the following year; and before any further renewal the defendants had increased the premium from $25, the former amount, to $30, all but $5 of which had been paid for a renewal from July, 1847, to July, 1848. A short credit had been given by the company for the payment of this balance, but the plaintiffs' treasurer had forgotten to pay it, and the renewal receipt for that year had not been delivered; and nothing had been done to procure a renewal for the following year, during which the loss happened; unless the alleged parol arrangement, upon which the plaintiffs relied, effected such renewal. To establish such arrangement the plaintiffs examined their treasurer, A.N. Lewis, who testified to a coversation with Mr. Ellsworth the defendants' president, who called upon the witness at his place of business in the city of New York, two or three days prior to the 21st of July, 1846, when the first year's insurance would expire. The witness' account of the interview is as follows: "Mr. Ellsworth said, Mr. Lewis, I suppose you know that your policy will expire in a day or two. I told him I did; that I had intended calling at the office to pay the premium and renew the policy. He said, my object in calling is to ascertain whether your board of trustees does not intend to let this policy remain with us permanently; to keep it with our company. I told him we did, decidedly. He said `I hoped so, and supposed so.' I then said I would call at the office and would pay the premium. He said he wished I would not give myself that trouble; that he would himself call upon me. I told him I wished to be kept insured. He said I need give myself no anxiety about the matter; that I need not call at the office; that he would attend to it himself; that he would bring me the renewal receipts himself and would collect the premium from me. I said very well, we wish to be kept insured." Mr. Ellsworth was subsequently examined on the part of the defendants, and denied that at the interview referred to he had used the language mentioned by Lewis, which imputed an arrangement for the indefinite continuance of the insurance and his calling for the premiums in future years. This outline of the case, with such further explanations as may be given, will enable me to examine the merits of the numerous exceptions taken by the defendants in the course of the trial, most of which are now relied on by the plaintiffs to reverse the judgment which was rendered on the verdict for the defendants.

The plaintiffs' counsel inquired of the witness, Lewis, what was meant by a permanent policy; and he excepted to the ruling by which the question was rejected. That phrase had not been used in any part of the testimony, and if it had been it would not have been competent for the witness to prove its meaning, as it does not appear to have been a term of art, or one employed in any particular business, or that the witness had any qualifications for interpreting it which were not equally possessed by the judge and jury.

The testimony of A.G. Stevens, who was the defendants' secretary at the time of the transactions in question, who had been a witness on a former trial of the cause, was given in evidence by the defendants, he having since died. The following portion of that testimony was permitted to be read against the objection of the plaintiffs' counsel: "There never was any renewal of the policy in question from the 21st July, 1848 — application for renewal thereof or premium paid. No act whatever to renew after July, 1848. No demand of the premium made nor renewal certificate issued or given after 21st July, 1848, nor any made out before or after that date for the continuance of the policy after that time." The exception is stated to embrace every sentence of the part extracted. The witness, as secretary, had charge of the company's office, which was in Brooklyn, and must be supposed to have had knowledge of all the books and papers kept there which related to the alleged insurance. He must also be assumed to have spoken only of facts within his own knowledge; for it would be unreasonable to suppose that his denial was meant to embrace facts which were alleged to have taken place between the president and Mr. Lewis, in New York. No ground for the objection is stated. Lewis had testified to an interview with Stevens at his office, in Brooklyn, in 1847, in which he stated that the latter had given him time for the payment of the five dollars wanting to complete the payment for that year; but it had not been, as I perceive, contended that an agreement for a continuing insurance had been made with him. It was natural that the defendants should wish to put at rest any inference that any thing in the office, or within the knowledge of the secretary, tended to establish the alleged agreement. Strictly, the evidence was unnecessary and immaterial. If the objection had been put on that ground, it is to be presumed that it would have been excluded. Immaterial evidence sometimes has a tendency to prejudice the party against whom it is given, but I can see nothing in this evidence which could possibly have had that effect. If the plaintiffs did not rely upon any thing in the office or within the knowledge of Stevens, and I think they did not, the positive proof of the absence of any such facts could not prejudice them. If, on the contrary, they did insist upon such facts, inferentially or otherwise, it was proper to disprove their evidence.

The defendants' counsel was also allowed to read a part of Mr. Stevens' deposition, in which he stated that the president had never reported to him the existence of such an arrangement as the plaintiffs attempted to prove, and that he had never heard of any renewal or agreement to renew the policy after July, 1848. The exception based upon this ruling does not specify any grounds. It falls, for the most part, within the same reason which has been given for disallowing the last exception. It may be added that the court will so far take notice of the usual course of business as to assume that the office of an insurance company would contain a minute of all actual contracts of insurance, whether made at the office or by its officers outside of the office. Besides, the books and registers of the office, for the time to which the controversy relates, were afterwards given in evidence, without objection, and they confirmed what the secretary had sworn to.

A portion of Mr. Stevens' former testimony was to this effect: that the company's insurances were from year to year, and they were not permanent as to time, but he, the secretary, had individually made arrangements with several persons, whom he named, that he would make out their renewal receipts, when they were due, and would call upon them for the premium; and in such cases he took the receipts to them and got the money within a week or a month afterwards; that in some instances he had left receipts without receiving the premium; and that there were some such cases existing at the time of the fire in question. The plaintiffs' counsel wished to give this portion of the testimony in evidence, but it was excluded on the defendants' objection, and the plaintiffs excepted. If the objection depended upon the view of the witness that the cases he spoke of were formal transactions and did not affect the company, I should think the ruling erroneous. But the testimony was objectionable for a different reason. Evidence of such a loose practice by the secretary with the persons named did not really tend to show that the president had made the arrangement claimed with the plaintiffs' treasurer. It was not material, upon the question of the authority of the president to make such an arrangement, for his power to do all that he had undertaken to do was expressly conceded. The only agreement which could be deduced from the testimony, if it had been received, would have been that, as the secretary was found making such informal arrangements, it was quite probable that the president had made the one claimed with the plaintiffs, though he denied it. This would not be either a logical or a legal deduction.

The only answer that Mr. Beers, the defendants' witness, gave to the question (which was allowed against the plaintiffs' objection) as to how often the plaintiffs' policy had been renewed, was that it had been renewed twice, in 1846 and 1847. The plaintiffs had claimed that such renewals had been made; and so far as the matter was material, the answer was favorable to the plaintiffs.

The plaintiffs' counsel proposed to prove by Mr. Beers that it was the usage of the company to send notices of the expiration of policies, even where there were agreements for permanent insurance, and the evidence was excluded. It had been proved without contradiction that a notice was sent to the plaintiffs' treasurer, in anticipation of the expiration of the renewal for the year terminating July, 1848. This did not prove or tend to prove that it was or was not a permanent policy in the sense in which that term was used in the question, and I do not perceive that the usage suggested would have had any just influence upon the question. It was established that so far as the office of the company from which the notices were issued was concerned, the insurance upon the church had not any other character than the ordinary policies, renewable from year to year by payment of premium and renewal receipts. The giving of the notice just before the commencement of the year during which the fire happened, was in conformity with the state of things appearing in the office, and the practice of the company. It was not material what would have been done if another state of things had existed there.

The fire occurred on a Sunday morning. The following Monday morning Mr. Sandford, a trustee of the church, and Mr. Lewis, the treasurer, went to the company's office and had a conversation with Mr. Stevens, the secretary. The plaintiffs' counsel wished to prove that he had admitted on that occasion that the church was under insurance by the defendants at the time it was burned. Mr. Sandford had been examined on a former trial and had given testimony as to what took place at that interview, and had since died. According to this testimony, which the plaintiffs wished to read, Lewis said to Stevens, "I understand that you reject the policy on our house." Stevens answered, "We do not reject our policies." Something more was said which the witness stated he paid little attention to. The plaintiffs' counsel proposed to give this former testimony in evidence, but it was excluded on the defendants' objection. It would be a sufficient answer to the exception to this ruling, that the evidence did not amount to an admission of an insurance. It was rather a denial that any policy existed. It was excluded, however, apparently on the ground of irrelevancy. But the plaintiffs thereupon recalled Lewis, and broadly offered to prove by him that "Mr. Stevens, the secretary of the company, acknowledged [on that occasion] to him and Mr. Sandford, at the office of the company, that the church was insured at the time of the fire." It appeared that Stevens' attention had been called to that interview on the former trial, and he had sworn, in effect, that so far from admitting an insurance, he had stated that the church had not been insured since July then last past. The judge excluded the testimony offered to be given by Lewis, and an exception was taken, which presents a closer question than any of the preceding exceptions. As principal evidence it was incompetent, being the declaration of a third person who, though an agent of the defendants, was not then engaged in the performance of any act relating to his agency, so as to bring the case within the rule which allows the declarations of an agent as part of the res gestæ It was not competent for the purpose of disproving Stevens' denial of the alleged admission, for an issue can not be raised upon an answer to a question put to affect a witness' credibility. The only question is, whether it was not competent as a contradiction of his testimony in which he said that there was no insurance. There is no doubt but that if a witness testify to the existence of a material fact within the issue, the opposite party may show that he has, out of court, made a contradictory statement as to that fact, with a view to affect his credit. (Patchin v. The AstorMutual Ins. Co., 3 Kern. 268.) His attention must first be called to the alleged conversation, which was sufficiently done in this instance. But was the testimony to which the alleged contradiction was offered material? I have already said it was not. It was conceded upon the pleadings and throughout the case, that there was no written contract of insurance for the year in which the church was burnt, and it was not pretended that there was any verbal arrangement made with Mr. Stevens. The only one attempted to be established arose out of the conversation between Lewis and Ellsworth in New York, to which Stevens was not a party, and of which it does not appear that he had any knowledge. I think this case does not therefore fall within the rule which has been mentioned, and that the ruling was correct.

The remaining exceptions relate to the instructions to the jury. The plaintiffs desired them to be charged positively that the church was insured for the year ending in July, 1848, which was the year prior to the fire. The fact was not directly material, though it may have been argumentatively. The instruction given was that, if a credit was given for the five dollars, the unpaid balance of the premium, the policy attached for that year. Only $25 of the $30 charged for the premium had been paid. The secretary had, according to the testimony, promised to pay that balance in a short time, and had forgotten it. This amounted to giving credit for that amount, and, if the jury believed the evidence, the insurance, according to the judge, was perfect for that year. I think there was no error here.

The judge stated to the jury in a general way what was essensential to constitute a valid contract of insurance, namely, that the minds of the parties should meet as to the premises insured and the risk; as to the amount insured; as to the time the risk should continue; and as to the premium. The plaintiffs excepted generally, without indicating what part they found fault with, or that they desired any qualification to be stated. I think the definition given a very accurate one, and that there was no error in laying it down.

The judge charged, in effect, that the verbal arrangement relied on must be understood as a contract to reinsure the church from year to year, at the premium charged in the policy which was running at the time the arrangement was made; and that if a different premium was subsequently exacted, and assented to, it put an end to the prior arrangement, and required a new bargain to effect a continuing arrangement. The plaintiffs do not contend that the effect of the arrangement was that the defendants should perpetually insure them, or that they would through all time be insured by the defendants. As they construe it, and as the reasonable interpretation would be, if the arrangement claimed was made, it was an understanding that until one of the parties dissented, the contract should be continuous, and the president should call for the premium when he thought proper, after it was due. In 1847 the president offered to the plaintiffs' treasurer, at the place of business of the latter in New York, a renewal receipt for the year which would end in July, 1848, claiming a premium of $30 instead of $25. The treasurer declined to pay the $30, and he swears that the president insisted that it was the same which had been paid the year before, and that it was not intended to change the amount. It was agreed, as he says, that he should look up the former receipt and go to the office of the company. This he did, and the secretary refused to renew at less than $30, and the plaintiffs' treasurer assented to the change paid the $25, which was all he then had with him, and promised to pay the balance. The point of the exception is, that the arrangement of 1846 was for a continuous insurance limited as above stated, at such premium as should be from time to time charged by the company, and that a refusal by the defendants' officers to go on at the former rate of premium and the exaction of a higher rate did not amount to a disaffirmance of the arrangement, but only to a modification of it. The judge's view was that a refusal by the company to renew at the former premium put an end to the arrangement. The question is not free from difficulty. I am, however, led to the conclusion that the arrangement, if one existed, such as was sworn to by Mr. Lewis, was an entire contract embracing all its provisions, and that one of those provisions looked to an insurance at the then existing rate of premium. It is clear that the officers refused to insure any longer at that rate, and that Lewis, representing the plaintiffs, agreed to pay the additional amount charged for the year ending in July, 1848; but he never did make that payment; and he never in any way agreed that in future years he would pay the increased premium. I think, therefore, that the judge was right in holding that the change of premium terminated the arrangement between Lewis and Ellsworth made in 1846, and that it required a new understanding to enable the plaintiffs to rely upon being called upon on behalf of the company, instead of the usual method of taking out their renewal receipts as they were needed.

I am, therefore, in favor of affirming the judgment of the Supreme Court.