Peck v. New London County Mutual Insurance , 22 Conn. 575 ( 1852 )

Hinman, J.

We think the plaintiffs are entitled to retain

their verdict, upon the facts stated in the motion ; and that the several objections to their right to recover can not prevail. First, it is claimed, that the policy is void, because the true state of the plaintiffs’ title to the property insured, was not stated in the proposals. This document is very short: it purports merely to make application for insurance, to the amount of five hundred dollars on a tannery and bark-mill, and also five hundred dollars on the stock of hides, leather and bark therein. The approval of the defendants’ agent is endorsed on it, and it is signed by the plaintiffs. The motion shows, that, at the time it was made, and the "policy issued, the plaintiffs went to the defendants’ agent, and disclosed to him fully their precise situation, touching their title to this property ; particularly, that George R. Peck was the sole owner of the building, and the other plaintiff exclusively occupied it, and was the sole owner of the personal property ; and, with full knowledge of this, the agent, at his own suggestion, filled up and issued the policy, in its present form, purporting to insure the plaintiffs, as the joint owners of the property. Now, it is clear, there was no incumbrance upon the property. One or both the plaintiffs had a perfect title to it,—and the only object of the thirteenth section of the charter is to provide against any incumbrance there may be upon property insured. When there is an incumbrance upon the property, so that the insured have a less estate than a perfect, unincumbered title, they must state their true title to it. This means, that they must state their true title, in regard to any incumbrance upon it,—not that they must enter into a detail of the precise amount of interest which each one of the insured has in it. It is enough, that, among all the persons insured in a single policy, they have a perfect title, or a title incumbered only in the manner which is stated in the proposals. Again, it is claimed, that the declaration varies from the proof, in this, that it sets forth a joint ownership of the property, whereas the proof was, that each one of the plaintiffs owned different parts of it, in severalty. There might be something in this claim, if the plaintiffs had procured the joint insurance, without disclosing their several interests in the property. No doubt, there are cases which go to show, that, where a joint interest is averred in the declaration, it must be proved, and that it can not be supported by proof of a sole interest in one ; but it is unnecessary to consider this point here. The parties had power, by their agreement, to consider the property to be jointly or severally owned, as they pleased, and to treat it accordingly ; and we do not see, why they could not do this, for the purpose of insuring it, as well as for any other purpose. Here it appears, that the defendants’ agent, knowing the precise interest of both plaintiffs in the property, accepted and approved of the application for insurance, made by them jointly. Indeed, it is said, and not denied, that he drew up the application himself. At his own suggestion he filled up and issued the policy, in its present form. Under these circumstances, we think it is not competent for the defendants, to deny the joint title of the plaintiffs to the property insured. It is claimed, that the parol evidence of what took place, at the time the policy was issued, between the defendants’ agent and the plaintiffs, ought to have been rejected, on the ground, that the whole contract was merged in the writings. This evidence was objected to, generally; and it follows, that, if it was admissible for any purpose, it could not have been rejected. It was clearly inadmissible, for the purpose of qualifying or explaining the contract, and, we presume, was not used for any such purpose. But, we think it was properly received, for the- purpose of showing, that the parties agreed to treat the property insured, as the joint property of the plaintiffs. In this aspect, it went to prove that part of the declaration which alleges, that the plaintiffs owned the property insured. It is said by the defendants’ counsel, and we think, correctly said, that this is tantamount to an allegation, that they owned the property jointly. Now, this joint ownership might have been proved directly, by showing the fact to be as alleged ; or it might be, as in this case it was proved, by proving that the defendants, when they insured it, agreed to consider it as joint property.

Another point made in argument is, whether the insurance was void, in consequence of the want of interest of one of the insured in the real estate, and of the other in the personal estate. No doubt, from the nature of the contract, to indemnify the plaintiffs against loss, they must both have an interest in the subject matter of the insurance. Besides, a want of interest would render the policy a mere wager. We, however, know of no rule that requires, that the interest of a party insured, should be in his own right. He may insure, as trustee for another. We believe it is the common practice of commission merchants to insure in their own names, the goods of their various employers, and to cover the whole, in a single policy and, in such cases, it is not necessary even to name the persons who are interested in the policy.

Now, the plaintiffs, in fact, owning the property severally, but both together taking a joint insurance of the whole, each one, by this act, became, after the loss, a trustee for the other, with a right to recover, as such trustee, the value of the property not owned by him severally; and as he had a right to recover, in his own name, for his own several loss, they therefore became jointly interested in the whole loss ; and, for the purpose of showing this joint interest of the plaintiffs, in the whole property, and to rebut any presumption that it was a wagering policy, the parol evidence to which we have before alluded, was properly received.

The only remaining point is, as to the effect of the subsequent insurance of Seth L. Peck’s interest in the personal property, without first procuring the consent of the defendants to such insurance, and having such assent signified by an endorsement on the back of the policy, by the secretary of the defendants, as is said to be required by the twenty-first section of the defendants’ charter. That section provides, that, while insurance on any property subsists in the defendants’ company, and in any other office for insurance' against fire, at the same time, the insurance effected in the defendants’ company, shall be void, unless such double insurance subsist with the consent of the board of directors of the defendants’ company,signified by an endorsement on the back of the policy, by the secretary of the company, and by him subscribed, in pursuance of an order to that ef- • feet, given and passed by said board of directors. It was admitted, that Seth L. Peck’s interest in the personal property was under insurance, by the St. Lawrence County Mutual Insurance Company, at the time of the loss; and, to show that this double insurance was authorized under this section of the charter, the plaintiffs offered in evidence, an endorsement, in writing, on the back of the policy, signed by Lodowick Bill, agent, purporting, on behalf of the defendants, to give their consent to effect such further insurance, together with testimony of witnesses, to show, that said Bill was a local insurance agent of the defendants, and, as such, was authorized, by virtue of the practice and usage of the defendants, to grant such license on all policies issued by him. This evidence was* objected to, but received by the court. The principle sanctioned by this court in Buckley v. Derby Fishing Co., 2 Conn. R., 252, is sufficient to justify the admission of this evidence, even admitting that Bill was, strictly speaking, a mere agent, and that it is improper to call, or consider, him, the secretary of the company, for the purpose of authenticating this license. But, we think the evidence went to show, and would have justified the jury in finding, that, within the limits of his agency, and upon policies issued by him, as was the one in question, the company had made him their secretary, within the meaning of this twenty-first section of the charter, for the purpose of signing endorsements of this character, on the back of policies issued by him.

There is nothing in the charter, which confines the company to a single secretary; and, when they have directed any of their agents or officers to perform any of the appropriate duties of the secretary, they make such agent or officer a secretary, for that purpose. Any other doctrine would be liable to be abused, for fraudulent purposes. Upon the whole case, therefore, we do not advise a new trial, on any of the grounds claimed.

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

New trial not to be granted.