Benedict v. . Ocean Insurance Company

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 391 The only question in the case of any importance relates to the construction and meaning of the policy. In the written part of it, and following a statement of the subject and amount of insurance, is this clause: "Privilege for $4,500 additional insurance." One of the printed clauses is as follows: "If said assured or his assigns shall hereafter make any other insurance upon the same property, and shall not with all reasonable diligence give notice to this corporation, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect." The plaintiff effected additional insurance in other companies to the exact amount of the privilege granted, and, as it was offered to be proved, without giving notice thereof to the defendants. The defendants claim now that the omission to give notice of the other insurances rendered the policy issued by them void, and it need not be denied that if the provision requiring notice to be given, stood alone and unaffected by any other, that would be the effect. This is not, however, all that is contained in the policy on the subject. Effect must be given to the words, "privilege for $4,500 additional insurance," written in it; and if there is any repugnancy in the clauses, in construing the instrument, the written should prevail over that which is printed. What then was intended and meant by this writing on the face of the policy? The defendants insist that it was merely a consent that further insurance to the amount stated might be made, but notice of it must be given as the policy required; whilst the plaintiff's position is, that the "privilege" granted by the defendants to the insured "for $4,500 additional insurance," was in effect a waiver of the provision for notice to them. I think the *Page 392 latter is the proper construction. It required no permission or consent of the insurers for the insured to increase his insurance. The right is not derived from the insurer. He had the right without their consent to make other insurance, but by the terms of the policy he must give notice of such further insurance; if, therefore, the "privilege" granted be not construed as a waiver of notice of such further insurance, it is utterly without force or meaning. This was not the intention. The contracting parties designed that the written stipulation should answer a purpose; and this purpose, I think, was to sanction in advance any insurance Janson might obtain, not exceeding $4,500. The object of the printed provision of the policy requiring notice, is to give the company such information as to enable it to judge whether the insurer is obtaining excessive insurance, in order that it may, in that case, avail itself of its right to give notice to the assured of its intention to terminate the insurance. Additional insurance is a positive benefit to the insurers, unless it be increased to such an extent as to furnish a motive to defraud on the part of the assured; and the reason for notice of the amount is to enable the insurer to judge whether such amount is increased beyond that point at which he deems it unsafe to remain the insurer. When the defendants wrote on the face of the instrument the words: "Privilege for $4,500 additional insurance," it was equivalent to a declaration that they deemed that amount of additional insurance reasonable, and that it was not necessary to inform the insurers of insurance to that amount, as they would not deem it a reason for terminating the insurance, or for any action or objection. By giving the written phrase this meaning, no possible injury can accrue to the defendants. If another object of requiring notice, besides that stated, be to enable the company to know who was liable to contribute with them, that information is secured in case of loss by another provision of the policy. The ninth condition provides that in case of loss, the insured shall deliver to the company a particular statement, among other things showing "whether any and what other insurance has been made on the same property, giving a copy of the *Page 393 written portion of the policy of each company, and what was the whole cash value of the subject insured." I cannot but regard this as an attempt on the part of the defendants to escape responsibility, by a construction of their contract which would render it a mere deception. That which they characterized as a "privilege" they seek to convert into a snare. Expressly sanctioning in advance a further insurance by other companies on the property, to the extent of $4,500, because they were not notified of the sources from which it was obtained, the claim is, that their policy was not in force when the loss occurred. Nothing but the sternest legal necessity (which, in my judgment, does not exist) should induce such a construction of their contract. 2. There was no force in the reason assigned for nonsuiting the plaintiff, viz., that there was a misdescription of the premises containing the subject insured. The policy described the insured property as being in "a five story brick building, tin roof, situate in the rear of Nos. 195 and 197 Christie street." On the trial it appeared that the building was five stories high, with a cellar underneath. This was no misdescription; but if it were, the defendants could not raise the objection in avoidance of the policy. Their surveyor surveyed the premises prior to the policy being issued, and they thereupon furnished the policy themselves containing the description objected to. 3. I see no objection to the testimony of the acts and declarations of Wilcox as proved. Whether he was the general agent of the company or not, he certainly acted for it in this particular transaction. All the acts and declarations, to which objection was made, related to this special agency. He came to the plaintiff to get him to insure, representing himself to be the agent of the company. He informed the plaintiff that he would give the company a description of the building, and would tell him what premium they would charge; and after the company's surveyor had examined the building, he delivered the policy and received the premium of $70. This is all that he said or did, and whether the proof was admissible or otherwise it could not certainly injure the *Page 394 defendants. It was of no sort of importance as affecting any issue in the case. The judgment of the Common Pleas should be affirmed.