Wilson v. the Hampden Fire Insurance Company

*164 Ames, C. J. A motion for a new trial has been made in this cause, on the ground that the judge who presided at the trial permitted, notwithstanding objection made, improper testimony to pass to the jury; and also misdirected them, as to the construction to be put upon an answer given by the plaintiff to one interrogatory put to him on the application upon which the policy was based, and again, as to the burden of evidence in relation to the performance of a promise made by the plaintiff in his answer to another interrogatory in the application. In giving judgment upon this motion, we shall consider, shortly, in the order in which we have named them, these causes, alleged by the defendants why their motion should be granted. First. The admission of improper testimony complained of consisted, in allowing the plaintiff to rebut an inference which the jury might draw to his disadvantage from evidence put in by the defendants, unless the defendants would consent to withdraw that evidence, which was clearly irrelevant to any issue arising on the trial. It is said, that guarded in purpose even as the admission of this rebutting testimony was, it was at least irrelevant testimony, and ought to have been rejected. The admission of irrelevant testimony, tending to prejudice the jury against a party might, in the discretion of the court, be a ground for new trial on his motion ; but where, as in this case, the testimony seems to have been admitted solely to remove a ground for prejudice against the plaintiff caused by the irrelevant testimony of the defendants, its admission is not only not a ground for a new trial, but the testimony might have been very properly received by the judge in his discretion, for the impartial ordering of the trial. Second. The next cause for new trial alleged is, that the judge misdirected the jury in construing, in its connection, the word , proprietors,” used in the 20th interrogatory of the application, to be broad enough in its meaning to include the tenant of the works concerning the superintendence of which that interrogatory was put, in justification of the truth of the answer of the plaintiff thereto. In deciding a question of this kind, it by no means follows that the rigid meaning of a word used in an interrogatory will *165 ascertain the meaning conveyed thereby in the question, or, what in such a case as this is quite as important, the meaning actually conveyed in response thereto, in the answer. The notion conveyed by the plaintiff in the answer complained of is the substantial matter here ; and although the proper meaning of the words of the question are certainly to be first resorted to in order to understand the answer, it would be giving the proprieties of language the precedence over its purpose, to allow these to prevail over the obvious meaning conveyed by an uneducated man, clearly ascertainable from what he said, taken in the connection in which he said it. So fully is the good sense and justice of this recognized by the common law, that it requires the whole of a written document, letter, or the like, to be put in evidence, if any part of it is to be used against a party; so that any imperfection, defect, or excess of the language used in it, whether necessary or accidental, may be explained or cured by the context in which it stands, or. the purposed qualifications which accompany it. To the construction of no species of document does the spirit of this rule apply with more force than to the application or survey, as it is called, usually made part of a modern policy of life or fire insurance. Filled with numerous questions, many of them consisting of several clauses, and drawn up with the skill of cross-examining counsel of the first class, printed in fine type, and scattered broadcast by agents amongst the many little property holders of such a country as ours, who from habit and education are wholly unfitted, without assistance, to disentangle the meaning from the skilfully contrived network of questions in which it is involved, the wonder is, ngt that some contain answers intelligible enough but not consistent with the proprieties of diction, but that so many questions are, in general, so properly answered. When it is considered that every one of the answers to every one of these numerous interrogatories of' many clauses, is, as in this case, frequently made “ a warranty on the part of the assured,” and yet that they are responded to by the uneducated and unreflecting, without assistance, every day, all ignorant of the critical position in which they are thus placing themselves, we see reason enough for looking at the substantial meaning intended *166 and conveyed by them, without holding them too strictly to the refinements and proprieties of language. The practice adopted by insurance companies for their own convenience, of putting so many questions in their printed forms in the plural, when if ' the questions had been put successively and after the answers to the previous questions had been read, the singular would have been adopted, has, as we see in the case before us, a strong tendency to mislead. No doubt if the singular number were adopted in these forms it would have a like tendency; the difficulty growing out of and inhering to the practice, in any form, of putting so many and complex questions, before the previous answers can be known to guide their form, without, as in case of depositions, having an experienced magistrate or commissioner to aid by explanation the respondent. This mode of interrogation is the practice of the companies, and these printed forms are prepared by them; and we have the high authority of Lord St. Leonards, in a recent case of a life policy tried on appeal in the house of lords, and in relation to this very species of instrument of insurance companies under the very practice of which we speak,- that “ if,” to quote his own language, “ there be any ambiguity in it, it must be taken according to law more strongly against the person who prepared it.” Anderson v. Fitz gerald, 24 Eng. L. & Eq. R. 11. Now the matter under this policy stands thus: the applicant, having to previous questions answered, that the buildings and machinery both belonged to one person — himself—except certain specified machinery which he states to belong to Alexander S. Hopkins, and not to be insured in this policy, and having also previously answered that “ the works ” are not.operated on account of “ the proprietors,” but are rented, is next pursued with the question, “Are they (the works) immediately superintended by one of the proprietors ?” to which he answers, “ Yes”; the fact being, as was proved, that they were superintended by the same Alexander S. Hopkins, who rented the works of the applicant, and who was “ the proprietor ” named in the answer to a previous question, of a part of the machinery operated in those very “ works.” It is true, as is remarked by the counsel for the defendants, that the questions considered by-'themselves, mark *167 the distinction between “ proprietors ” and those to whom the buildings are “ rented,” and that this distinction accords with the proper meaning of the word “ proprietors ” as laid down in the dictionaries; but it is also true, that in common parlance, the person who runs a-mill, is, amongst us, though but a tenant, usually spoken of as the “ proprietor ” of it, to distinguish him from his superintendents and work-people; and that when the applicant has just said that he alone owned the mill and another man hired it, and is, notwithstanding, then asked, whether it is operated by “ one of the proprietors,” there being in the strict sense, as hé has just explained, but one proprietor, he might naturally conclude that the word “proprietors” as now repeated must have been intended to include the tenant, according to an ordinary use of it. It is evident that here is an ambiguity, to say the least of it, created by the plural form of the last question, continued, notwithstanding it was calculated, considering his former answers, to mislead the respondent, if the strict meaning of the word “ proprietors ” was intended to be preserved in the question. If this be so, the rule, as we have seen, requires that the meaning of the question be taken most strongly against the defendants who framed it, and who, if misled by the answer, have no right to complain, since they misled the applicant by their mode of putting the question which elicited it. But beside this, there is a sense in which the answer of the applicant is true, attributing tó the word “ proprietors ” in the 20th interrogatory of the application its strictly proper meaning, the same which it had, and was understood by the applicant to have in the 19th, which immediately precedes it. The applicant had already explained, and the fact was proved to be so at the trial, that Alexander S. Hopkins, who was the tenant, owned a part of the machinery in the same mill which contained that insured under this policy, and which was operated along with it, as part of the same “ works.” When, therefore, the applicant was further asked whether “ the works ” were immediately superintended by “ one of the proprietors,” he might, with entire truth and with strict propriety in the use of language, answer, as he did, that they were. It is said by the counsel for the defendants, in reply to this view of the matter, that the questions *168 in the application were of course understood, and intended to be understood, as applying only to the property insured; which in this case, would be part only of the movable machinery in this mill. Upon examination, however, it will be found, that the questions were neither designed by the company, nor understood by the assured, to have so limited an application. The 18th question asks, if “ the buildings ” which were not insured under this policy, as well as “ the machinery,” a part of which only was, are “ both owned by the applicants for this insurance ? If not, state by whom, and the nature of your interest.” So much for the question, indicating the intent of the office to ascertain by it the ownership of other property than that insured. Then look at the answer to it, which shows that the insured rightly understood that it had this wider application : “All owned by one, except 8 cards, 1 drawing-frame, and about 75 new tin cans, belonging to Alexander S. Hopkins, not to be insured in this policy.” When, therefore, he was asked in only the question but one succeeding, whether “the works” were “immediately superintended by one of the proprietors ? ” he might well understand that this question, as well as the 18th, related to other property than that asked to be insured, to wit, to all the property included in “ the works ” and operated as a part of them; and thus not only truly, but with strict propriety, answer as he did, that they were superintended by one of the “ proprietors,” — that is, by Alexander S. Hopkins, who, as had been before explained, was the proprietor of 'a part of the machinery operated. There is another view of this matter, which is in our judgment of especial importance; and for that reason, the attention of counsel was particularly directed to it at the argument. The only ground upon which the defendants can fairly object to this, or to any other answer to the numerous questions which they have put, is, not that it is not worded with nice attention to the proprieties of the English language, but that the meaning conveyed by it to them has misled them as to the basis of facts upon which, to use their own language, “ this insurance was (is) predicated.” The supposition thus made, is, however the fact may have been, that this application and survey, having been filled *169 up by the applicant, was transmitted to the office of the company at Springfield, Mass., by its agent, and was there laid before the board of directors, as a statement of facts warranted to be true, upon which, after due consideration, they were to decide whether they would take the risk offered, and if they did, at what premium. Now the substantial question is, did this board — could this board, if, as was their duty both to the applicant and the company, they carefully read over the successive questions and answers of this application and survey, have understood that Israel Wilson, who in it told them that he had rented this little mill, and all the machinery in it of which he was the proprietor, nevertheless “ immediately superintended ” it for his tenant, in the sense in which such superintendence is agreed to be understood by men accustomed to the use of the ordinary language applied to the management of this species of property ? Such an idea so reverses the customary relations between the laiidlord and tenant, that at least it must have induced them more critically to scan the language employed in the questions and answers of the application, to see if it could be the meaning thereby intended to be conveyed; and we are all satisfied that if they had done this, they must have discovered, at least, that misled by the ambiguity of the question created by the form in which it occurred after, and in connection with the previous questions and answers, the applicant had understood, as he well might, that the word “ proprietors ” included the tenant; or, as we rather incline to think, that supposing the question related to all the machinery in the “ works,” as well that not to be insured, as that to be insured under the policy applied for,. he intended, when he answered that “ the works ” were immediately superintended by “ one of the proprietors,” that they were superintended, as such small works usually are, by the tenant, who, by a previous answer to a question in the application, was stated to be a proprietor of a part of the machinery operated in the works. Whichever way this is considered, the objection taken to recovery on this ground fails, and this motion, so far as it depends upon it)(cannot be granted. We have been at this pains to explain the reasons for our coming to a conclusion, which, upon reflection, it seems very easy *170 to reach, because conscious of disapproving the system of late adopted, of making every answer to the numerous and involved questions in an application for a fire policy, however unimportant, a warranty, we are fearful lest that might be deemed to sway us from our duty, by unconsciously leading us to pervert, to the injury of a company which, after all, in this respect, but follows the common example, the intent and import of an instrument which formed the basis of the contract of insurance into which they have entered. Such a wrong to the administration of the only justice we can know, that measured out by the law, we estimate as of deeper injury, than any which the practice we disapprove can inflict; and except to give all parties before us, fairly and unswervingly the benefit, benign or severe, of the law as applied to their conduct and contracts, we are the masters of none — we are the guardians of none, whom the law permits or enables to act or contract, as they will, for themselves. Considering every answer in this application, as the parties have expressly made it, a warranty, we have not asked ourselves how material the answers in question may be to the risk, since that has been already determined by the parties for themselves. They have made the truth of each and all of the answers in this application a condition precedent to the right of the assured to recover on this policy; and we have therefore confined ourselves to the humbler office of construing their language, instead of rising to the consideration of the materiality of the facts about which they have chosen to employ it. The last cause for new trial alleged in this motion, is, that the presiding judge, adverting in his charge to the position in which the defence would be left, (so far as the testimony of the plaintiff’s witness, Alexander S. Hopkins, was relied on by the defendants to prove the breach of the promissory warranty made by the plaintiff, that the mill should be entered as late as half-past ten every night to see that all was safe,) if the testimony of that witness should be rejected, instructed the jury, that the burden o| proving the breach of that warranty, was upon the defendants, instead, as he should have done, instructing them that the burden of proving its performance was upon *171 the plaintiff. Such an instruction was calculated, in the position in which the motion discloses that the defence upon this point stood in proof before the jury, materially to injure the defendants therein, and would therefore, if wrong, furnish a sufficient ground for new trial on their motion. We are all satisfied that this instruction was wrong; the judge confounding the distinction, so well taken and applied by the supreme court of Massachusetts, in the late case of Crowninshield v. Crowninshield, 2 Gray, 530-532, between what makes out a primd facie case, and what shifts the burden of proof, and, what is more radical, the distinction between a promissory warranty of the quality of the thing sold in a contract of sale, and a promissory warranty, like this, in a policy of insurance. In the former case, if, when the seller sues to recover the price, the buyer relies on a breach of the warranty as a total or partial defence, the burden of proof is upon him to show the breach of warranty; for the same reason that it would be, if he sued for breach of the warranty, instead of being permitted, as he is in this country, to avoid circuity of action, to defend himself by means of it in the suit brought against him for the price. Dorr v. Fisher, 1 Cush. 271, 274, 275. In such a case, says Chief Justice Shaw, in * delivering the opinion of the court, in the case just cited: “ It (the warranty) is not strictly a condition, for it neither suspends nor defeats the completion of the sale, the vesting of the thing sold in the vendee, nor the right to the purchase-money in the vendor. And, notwithstanding such warranty, or any breach of it, the vendee may hold the goods and have a remedy for his damages by action.” Ibid. 274. On the contrary, in a contract of insurance, “ a warranty,” to use the language of Lord Mansfield, “is a condition or a contingency, and unless that be performed there is no contract.” DeHahn v. Hartley, 1 T. R. 345, 346. This holds true, whether the warranty relate to things past, present, or to come, or is found in a marine, fire, or life policy. The text-books are full of this doctrine, and no case can be found contravening it. 1 Marshall on Ins. 348. Hughes on Ins. 308. 2 Phillips on Ins. 753, 2d ed. 1 Arnould on Ins. 581-5S4, and cases cited. Angelí on Fire & Life Ins- § 142. There is, however, a class of cases nearly resembling these, which is apt to be confounded with them; and an im *172 perfect recollection of which partly caused the erroneous direction in question. Where the promissory stipulation is not made a warranty, and the courts are inclined, if they can, to construe them to be representations merely, the proof of the breach of such stipulations is matter of defence only, and the burden of proof rests, of course, upon the defendants. Catlin v. Springfield Fire Ins. Co. 1 Sumner, 435, 443. Houghton et al. v. Manufacturers’ Mut. Fire Ins. Co. 8 Metcalf, 114, 120. Underhill v. Agawam Mut. Fire Ins. Co. 6 Cush. 440, 446. Jones Manufacturing Company v. Manufacturers’ Mut. Fire Ins. Co. 8 Cush. 82, 84. It follows, from the nature of the case, that a declaration upon a policy containing express warranties should always aver the performance of them by the assured, although, as ruled last year by the court of common pleas in England, “ the general averment that all things have happened which it was necessary should happen to entitle the plaintiff to be paid, is sufficient.” Bamberger v. The Com. Credit Ass. Co. 29 Eng. L. & Eq. R. 312. In New York, it seems, that under the old forms of pleading, even this was not deemed necessary. Hunt v. Hudson River Fire Ins. Co. 2 Duer, 481. It is clear, however, upon principle, to use the words of Mr. Justice Washington, in Craig v. The U. S. Ins. Co. 1 Peters’s C. C. R. 410, that where the assured has entered into a warranty, he cannot recover against the underwriters “without first averring and proving performance of these stipulations”; and see 2 Phillips on Ins. 753, 2d ed.; 2 Arnould on Ins. 1262,1325. The burden of proving the performance of all warranties made by him rests upon the assured; and although this burden may be lifted by presumption merely, as in case of the implied warranty of seaworthiness it is held to be, yet this cannot shift the burden, which remains, notwithstanding the primd facie case thus made out by the plaintiff, where the law first casts it, to the end of the trial. 1 Arnould on Ins. 686, n. 1, and cases cited. Upon the ground of the misdirection of the judge trying this cause, in the particular last referred to, a new trial must be granted to the defendants ; the plaintiff to have leave to amend his declaration, by inserting .the general averment of performance above mentioned, and the costs of this motion to abide the event of the suit.