N. Sheldon & Co. v. Hartford Fire Insurance , 22 Conn. 235 ( 1852 )

Ellsworth, J.

Three questions are presented for our

consideration. 1. The propriety of introducing parol'testimony ; 2. The incompleteness of the contract of insurance ; 3. The non-payment of the premium. The two last are resolved chiefly, if not entirely, into questions of fact, for the jury, which we shall not discuss, since some evidence was properly before them, for their consideration. Jf they have mistaken its force, this motion will not give the defendants redress. As to the first question, we think there must be a new trial.

The defendants claim, that the entire contract has been reduced to writing; their part, in the policy of insurance ; the plaintiffs’ part, in the questions and answers in the survey, so called, referred to in the body of the policy. The defendants say, these stipulations and conditions, though not specifically l'epeated in the policy, are, byreference, made to constitute a part of the contract, as fully as if the survey had been incorporated at full length ; and that the survey being in writing, is so precise, and free from ambiguity, that parol testimony can not be admitted to explain or qualify it, without denying first principles. On the other hand, the plaintiffs claim, that the survey is not referred to, to express the stipulations obligatory on the insured, but for the purpose of designating and identifying the building in which the property is to be kept or manufactured, and that the true representation was, the statement made by John S. Fenn, to the agent. The plaintiffs make no question, that they have not kept the stipulatiqns and conditions contained in this survey, as it reads, and especially, that they have not kept a watch in the mill, as required in the answer to the eighth interrogatory ; as this court held was required, in the case of the Glendale Woolen Co. v. The Protection Insurance Co., in the 21st Conn. R., and that they have no case here, if the entire survey is held to be binding. Nor do they pretend, that this stipulation is unimportant, but they insist, that the survey is not their representation, and that the true representation was, as we have said, the statement made to said agent, by said Fenn, a short time before the issuing of the policy.

We are persuaded, the view taken .by the defendants’ counsel, is the true one. All the survey, as much as any part of it, is incorporated into the policy of insurance, and constitutes the conditions of the plaintiffs’ contract; and hence, every part, applicable to the subject matter, (and the eighth interrogatory certainly is,) is to be regarded as obligatory on the insured, whether the survey is to be held a warranty, as in the policy, or a representation material to the risk, to be substantially kept and performed, which latter is the character we are inclined to give it. We know no reason why a writing, intended to be a part of a contract, may not be held to be incorporated into it, by a proper reference, as well as by an extended recital. The reference in this case,- in our judgment, is of such a character. It was made, we think, to s,how what then were and should continue to be, the stipulations of the plaintiffs, touching the property insured. This the plaintiffs deny: they say it was for the description and identification of the factory building. Now it seems to the court, that this purpose was altogether unnecessary and superfluous, since it was already, stated in the policy, that the building was a factory building, occupied by the plaintiffs, situated in Glendale. -If more than this was wanted, as the ground assumed by the plaintiffs seems to allow,—viz., a more minute description of the buildings, it was, that the insurers might be better informed of the risk, so far as these particulars were important, in estimating the degree of it. But if so, are not the other parts of the survey equally important and obligatory, and especially the eighth interrogatory and answer ? It is incredible, that the insurers were so anxious to know more minutely the size and kind of material of the factory building, &c., and therefore incorporated the survey into the policy, to secure themselves to that extent, while other parts of the survey, touching the use and condition of the building, equally important, are passed over, as unworthy of attention ; such as the kind of business to be done in the mill, the mode of heating and lighting it, the position of water casks and forcing pumps, the kind of stoves and fuel used in the mill, the continuance of a watch by night, with a good watch-clock, to ensure constant watchfulness; the number of hours in the twenty-four,-the factory is run ; in what manner friction matches are kept in the mill; that no smoking or drinking of liquor is to be allowed on the premises ; whether the mill is run by the proprietor or tenants'; the existence of an organized fire company in the neighborhood, and the like. Who has a right to say, that any of these are not conditions and stipulations, meant to be incorporated into the policy, when the survey is referred to, generally, for information ? The directors of the company must have been beside themselves, not to have secured the company at all, in these and the like particulars; but it is so, if the survey is to be rejected.

When the plaintiffs admit, that, by the reference, the survey becomes a part of the contract, to the extent they allow in argument, we think they yield the question to.their opponents; as, after this, they can not make a sensible distinction between what they admit, and what the defendants claim.

Besides, if the survey is to be rejected by the plaintiffs, except to the extent admitted, where are we to look for any stipulations and conditions, on the part of the insurers ? or are there none ? Is this (a case of more than ordinary importance) an exception to all others ? Can we believe that, with the vigilance of the defendants, manifested by their requiring a printed survey of numerous and most discriminating questions, to be forwarded to the company, that they may have full information of anything material to the risk, they wanted only to know in this instance, the description and identification of the factory building, and for that purpose, made reference to the survey 1

It should be remembered, likewise, that this survey had been made some five months before the date of this policy, in behalf of these plaintiffs,and was sent by the very agents who issued the present policy, to the Protection Insurance Co., who had issued a policy upon that survey, payable, in case of loss, to the plaintiffs. There it remained, and reference was made to it, as there, and we can not doubt, it was meant and agreed by all parties, that it should be referred to, as the proper and true survey, in this case,

On the whole, viewing this survey as the contract of the plaintiffs, the case already mentioned, in the 2lst of Conn. R., settles the question; there, upon a kindred question, we held, that the eighth interrogatory and answer were a clear, certain and definite contract, not susceptible of ambiguity, and not open to parol proof.

If Mr. Fenn’s story, which is denied by the agent of the defendants, (and he made the contract of insurance, and issued the policy in pursuance thereof,) is true, then it is obvious, the policy and survey do not contain the true contract between the parties, and should have been amended; but this can have no effect in this case ; we take the writings as they are.

In this opinion, the other judges concurred, except Waite, J., who tried the cause in the court below, and was therefore disqualified.

New trial advised.