Steward v. Phœnix Fire Insurance

DaNiels, J.: The verdict on which the judgment appealed from was entered, was directed by the court for the sum unpaid on a policy of insurance issued by the defendant to the plaintiff on his flouring mill, situated at Mackford, in Marquette county, Wisconsin. It appears that the plaintiff applied for insurance in the People’s Insurance Company of New York, and for that purpose a survey was presented to and filed with that company. It did not issue the insurance applied for, itself, but took $2,000 of the amount and procured a policy for the same amount from the defendant, and another for a like amount from a third company. But all the policies were accepted and received by the plaintiff. That which was issued by0 the defendant contained the statement that it insured the plaintiff “ against loss or damage by fire to the amount of $2,000, on his four-story stone building, thirty by sixty feet, shingle roof, and on fixed and movable machinery therein, occupied as a flouring mill, situated at Mackford, Marquette county, Wisconsin, and known as the Mackford Mills, per survey No. 18,611,.filed in the office of the People’s Insurance Company, New York.” By the thirteenth condition of insurance attached to the policy, it was declared that, “ when a policy is made and issued upon a survey and a description of certain property, such a survey and description shall be taken and deemed to be a part and portion of such policy and warranty on the part of the assured.” And the policy contained the clause that it was “ made and accepted in reference to the terms and conditions hereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in-all cases not herein otherwise specially provided for.” [264] The survey referred to in'the policy was produced upon the trial, and the defendant’s counsel proposed to prove that it was taken by a person connected with the People’s Insurance Company of New York, and by him shown to the secretary of the defendant, who was requested to issue a policy upon it, and that, pursuant to that request, the policy was made out and issued, and that it was done on that survey only. It was conceded that it was not expected to connect the plaintiff with the statement, and thereupon the court rejected the evidence, and the defendant’s counsel excepted. The survey referred to in the policy was then offered in evidence by the defendant’s counsel, and excluded by the court, and to the decision so made the defendant’s counsel excepted. The survey seems to have been excluded upon the construction that the reference was made to it in the policy, only for the purpose of securing a definite description of the property insured. But as the preceding part of the policy contained a complete description of the property before any reference to the survey was made, that construction cannot be sustained. The clause in the policy required a broader construction in order to secure the effect for it which the ordinary import of the words made use of indicated to be intended by it, and that was, that the defendant insured the plaintiff against loss by fire to fhe property described, per survey No. 18,611, filed in the office of the People’s Insurance Company, New York; not merely that it was as described in that survey, but that the insurance was based upon it, and that construction is confirmed by the condition referred :to which made the survey a part of the policy and a warranty of the truth of its statements. The case in this respect does not appear to be capable of any substantial distinction from that of Le Roy v. Market Ins. Co. (39 N. Y., 90), where it was held that a similar reference and condition rendered the survey a part of the policy. And that principle was reaffirmed, in the same case, on another occasion, by the same court. (45 N. Y., 80; see, also, Ripley v. Ætna Ins. Co., 30 id., 136.) The case of Clinton v. Hope Insurance Company (45 N. Y., 454) is relied upon, in favor of the plaintiff, as an authority establishing a different principle. But it does not conflict with the other cases referred to upon this subject; for, although, the policy which was there under consideration mentioned the survey of the prop [265] erty as being on file in the office of its agent at Utica, the condition, declaring the survey to be a part of the policy, described the one it referred to as being on 'file in the office of the company, and that was at Providence, in Rhode Island. No survey was on file in that office, and consequently none was made a part of the policy. The present case affords no such avenue for escape from the construction already indicated. The policy and its conditions form but one instrument or contract, and by it the intention was clearly shown that the survey on file in the office of the People’s Insurance Company should -form a portion of the agreement made for the insurance of the plaintiff’s property, and that was entirely consistent with his object and design in making the survey itself; for, apparently, it was supplied and furnished as a basis of insurance to the amount of $6,000, and it was used to accomplish that object, not precisely as it was' expected to be, by a policy for the entire amount from the People’s Insurance Company, but by three, aggregating that amount, issued on .the faith .of the state, ments contained in the survey. And by the acceptance of the policies, the plaintiff ratified the departure so made from the original plan of insurance. It was error to exclude the evidence and survey offered by the defendant, and for that the judgment should be reversed and a new trial ordered, with costs to abide the event. Davis, P. J., and LawbeNOE, J., concurred. Judgment reversed and new trial ordered, costs to abide event.