Throop v. North American Fire Insurance

G-rayes J. Throop prosecuted the defendants in error to recover for a loss he claimed to have suffered under a policy issued to — 436 — him. by the company. The declaration was in assumpsit and the plea was the general issue in the common law form. Upon a trial before a jury, the plaintiff having given evidence with a view to show that the company had issuéd to him a policy as alleged in the declaration, and that it had been destroyed by fire, proceeded to prove by a witness by the name of Bassett the contents of the policy. This witness having testified that he had been familiar with the blank policies used by the company at their office in Adrian, that he had beefi employed in such office, and that a policy shown to him which purported to have been issued by them to T. & J. Wise, was in form the same as the policies used at its date by defendants; was then asked on cross-examination, whether, when policies of that kind had been used by the company, any other papers were executed by either party in connection therewith? This was objected to by the plaintiff, but the Court overruled the objection, and the witness answered that he knew of none except applications, and that Mr. Throop signed one ofv these at the time his policy issued. The plaintiff in error complains that this ruling was erroneous. We think, however, that the Court decided correctly in permitting the question to be answered. The fact called for was closely connected with the matter, which had been already drawn out on the direct examination. It bore upon the precision of the witness’ acquaintance with the insurance contracts of the company, as well as upon the exact nature of the transaction between the parties, and was clearly admissible under the rules of cross-examination. The witness having testified further with respect to the form of policies used by defendants, and his testimony having tended to show that the blank or printed portion of the policy, issued to Throop, was in the same form as that issued to Wise, which had been exhibited to the witness, the printed portion of the latter policy was read in evidence to the jury. — 437 — This instrument contained the following clause — “And provided further that if this policy is made and issued upon or refers to an application, survey, plan, or description of the property herein insured, such application, - survey, plan, or description, shall be considered a part of this contract and a warranty by the assured.” At this stage of the case, the plaintiff proceeded to testify in his own behalf on the merits, when in answer to a question put by the defendants, he stated that he made application for the insurance and that such application was reduced to writing and signed by him. The plaintiff’s counsel then offered to show by the plaintiff, that the property insured for him by the defendants was destroyed by fire during the life of the policy; but the defendants objected, in substance, that it had appeared by the evidence that a written application for the policy had been made, which the declaration had failed to notice, and that, consequently, a fatal variance existed between the contract as set up and as actually made between the parties. This objection was sustained by the Court and the evidence excluded. The-plaintiff offering no further testimony, the jury under the direction of the Court returned a verdict for the defendants, and the case is now to be determined according to the view we shall take of the decision of the Court below upon the foregoing objection. On turning to the record, it is seen that the declaration does not purport to set out the contract in the words and form employed by the parties, but appears to describe it by its substance and according to its legal effect, and therefore, whether anything material was or was not omitted from the declaration, could only be determined after ascertaining the nature of the supposed absent matter. Though it should be conceded that words and even sentences inserted in the instrument, which evidence the contract, were not repeated in the declaration, it could not be — 438 — held to follow that the pleading was at fault, or that a variance would be the consequence. It would still be necessary that the omitted matter should be brought before'the Court in order to ascertain its bearing upon the contract, as the plaintiff had seen fit to state it. In answer to this view, the defendants’ counsel argues that the application was by express agreement, actually made a warranty, and therefore that it necessarily contained matter which the plaintiff was required to notice in his declaration. It may be observed, however, that this proposition assumes that the pleading which only purported to state the contract according to its effect in law, did not include the legal bearing and effect of the particular application which the plaintiff made for the policy. With equal propriety the plaintiff could assume that his declaration did contain the whole contract in its legal sense and meaning, but the question cannot turn upon the assumption of either party. It is for the Court, when all the evidence bearing upon the point is given, to determine, whether, upon a right construction of the evidence produced, the plaintiff has or has not mistaken the legal effect of the stipulations constituting the contract. So long as the evidence accords with the declaration, a variance is not to be intended, upon a supposition that some matter not repeated in the pleading, and not before the Court, would if submitted, give quite a different character to the contract from that actually counted upon. This branch of the argument for the defendants is open to another consideration. It is very clear that applications for insurance may be and often are, in such form as to defy all attempt to make them warranties by a simple statement that such shall be their character. If a set of words lack the signification to make the turning of them into evidence of — 439 — a warranty legally possible, an agreement that they shall constitute a warranty must certainly be ineffectual, Anri until it should appear in some way, of what the “ application” consisted or what it embraced, the Court could not not judge it susceptible of the character of a warranty or determine its legal consequence. It cannot, therefore, be concluded that because an “application” was made, it must necessarily haye been so framed as to become a warranty by force of the clause in the policy which has been quoted. That stipulation in the policy should haye a reasonable interpretation, and ought not to be pushed to a meaning, which would involve the extraordinary results to which the theory of the defendants points. The proper construction of the clause will make it applicable to those cases only when the “application” is of such a nature, and so drawn as to be capable of being impressed with the character of a warranty by force of the stipulation in question. As a consequence of this view, it follows that proof or admission that an “application” was made, without anything farther, would not justify the Court in holding, as matter of law, that it contained statements, stipulations or conditions in any manner qualifying or altering the legal sense of the contract as stated in the declaration. It is still contended, however, on the part of the defendants, that the parties having made the “application” a part of the contract, the plaintiff even if he deemed that it contained nothing so material as to require notice in his declaration, was bound to produce it on the trial and put it in evidence, as a part of his case, in order that the Court might determine ruhether or not it contained anything material. It will not escape attention that the Court below, in accordance with the view which seems to have been entertained by 'defendants’ counsel at the trial, and with the view necessarily to be implied from the position just adverted to — 440 — of the counsel in this Court, did not deem it necessary that the “application” should be put in evidence, or even produced, in order to decide that it was a material stipulation and one which invested the contract with a different legal sense from that ascribed to it by the declaration. That the Circuit Judge did so decide without evidence of the conteuts of the application is shown by the record, and that decision is one which the defendants have endeavored to support here. But passing by this circumstance, no reason is perceived for maintaining that the plaintiff was under any duty in this case to put in evidence any matter which in his judgment was immaterial or irrelevant. Iiis duty was to prove his case as stated in his declaration, and he does not appear to have been placed under any necessity to furnish evidence for his adversaries. He was proceeding to prove his case, as it stood upon the record; and in so far as he was permitted to give evidence, it does not appear that any matter was produced before the Circuit Court, which proved or tended to prove that the legal sense imputed to the contract by the declaration was not correct. The isolated fact that an application was made did indeed appear. But this fact standing alone, without the least showing as to the character or subject matter of the application, could furnish nothing for the judgment of the Court upon the question of variance. When the defendants alleged that a variance existed, they tendered an issue on that subject to the plaintiff, and before invoking the judgment of the Court in their favor, they were bound to show to the Court, either by new evidence or by reference to something already introduced, the particular’ matter upon which they relied to warrant such judgment. Without such matter, the Court could be possessed of nothing upon the point, but the counter allegations of the parties; and the defendants were not at liberty to insist — 441 — that there was a variance as they alleged, because the plaintiff did not furnish evidence to prove it. I think, therefore, that the objection in question was not based on tenable grounds, and that the Court erred in sustaining it. As this will necessitate another trial of the cause, and the question upon the pleading so elaborately argued before us will probably not arise again, it is not thought expedient to discuss that point. The judgment of the Court below must be reversed with costs and a new trial ordered. Campbell Ch. J. and Cooley J. concurred. Ohristiancy J. As I am not able to agree with my brethren in all the conclusions at which they have arrived in this case, nor in the general result, it becomes necessary to show to what extent I concur with them, and to specify the points and state the grounds of my dissent. I fully concur with my brethren that the question put to Bassett, the plaintiff’s witness, on cross-examination,— “ "Whether, when policies of that- kind had been issued by the company, any other papers were executed by either party, connected therewith — was proper and legitimate; and that the facts elicited, — that written applications for insurance were signed by the applicant in such cases, and that one was signed by Throop, the plaintiff, at the time the policy was issued — were facts proper to be brought out on cross-examination. The fact, that such application was reduced to writing and signed by the plaintiff, was also properly elicited from the plaintiff on his cross-examination, without objection. This fact, under the express provision of the policy, rendered that application a part of the policy, or contract of — 442 — insurance, for the breach of which the action. was brought, as completely for all purposes connected with the suit, as if the same had been inserted in the policy itself, and its statements therein declared to be a warranty. This I think must be so in principle, and it is well supported by authority.—Glendale Woolen Co., v. Ins., Co., 21 Conn. 19; Duncan v. Ins. Co., 6 Wend. 488; Burritt v. Insurance Company, 5 Hill, 188; Chaffee v. Insurance Co., 18 N. Y. 376; Battles v. Insurance Co., 41 Me. 208; Egan v. Ins. Co., 5 Denio, 326; Jenninqs v. Ins. Co., 2 Denio, 75; Routledge v. Burrell et al., 1 N. Bl. 254; Worsley v. Wood et al., 6 T. R. 710; Geach v. Ingall, 41 M. & W. 95; Strong v. Rule, 8 Bing. 315; Kennedy v. Ins. Co., 10 Barb. 285; Murdock v. Ins. Co. 2 N. Y. 210; Wilson v. Ins. Co., 6 N. Y. 53; Tebbetts v. Ins. Co., 1 Allen, 305; Ripley v. Ins. Co., 30 N. Y. 136; 1 Phil, on Ins. (5th ed.) pp. 413, 414, Sec. 756; 1 Arnould on Ins. 578. But to enable the Court to determine to what extent this application, if inserted in the policy, would change or modify any of the other terms of the policy, or the legal effect of the contract of insurance on the part of the defendant as set forth in the declaration, I agree with my brethren that the application must be introduced, in evidence, or its contents shown. This was not done in the present case; and the Court was left in entire ignorance of its contents. In this aspect of the case it becomes important 'to determine, first, — upon whom, under the circumstances of the case, rested the burden of proving the application or its contents; and second, — what are the legal consequences of the omission. It is upon the proper solution of these questions (and'mainly the first of them), that I differ from my brethren. Upon the question of pleading — while I see no reason to doubt that the declaration should, upon all sound logi — 443 — cal principles of common law pleading, have set forth the whole of that portion of the contract, for the breach of which the plaintiff sought to recover, according to its legal effect, as modified by the application expressly made a part of it; yet, however improbable, it may, perhaps, be still legally possible, that the application contained nothing which would in any- manner have modified the contract as shown in its other provisions expressed on the face of the policy. And the contents of the application not being shown, we cannot perhaps say, that this principle of pleading has been violated; nor that there was in this case, what can be strictly termed, a variance. But I do not propose to discuss the question of pleading or that of a mere variance ; as we have, since the argument in this case, adopted a rule of Court applicable to the mode of declaring upon policies of insurance, which will prevent the recurrence of such questions in future cases. But the main question, as it seems to me, is, whether the plaintiff, under the circumstances of this case, by merely proving the contents of the policy, independent of the application, had sufficiently proved the contract alleged in his declaration to make it the duty of the Court to submit that proof to the jury, without any proof or offer on the part of the plaintiff, to prove the application or its contents, and without showing any excuse for its non-production, any notice to produce, or effort to obtain it. If he had not; then, as no such offer was at any time made by the plaintiff, and no excuse shown for the omission; it is entirely immaterial on what precise ground the Court refused to allow him to proceed with proof of a loss; since, upon this hypothesis, no evidence he could have possibly given of the loss, could have entitled him to recover; and the error of the Court, if any, could not possibly have operated to his prejudice. But the record does not show that^ the decision was — 444 — based upon the narrow ground of a defect in the declaration, or a mere variance. The objection made to the proof of a loss was : “That, as it appeared by the evidence that there was a written application upon which the policy issued, which application was, by the terms of the policy, made a part of the contract and a warranty on the part of the defendant, it was the duty of the plaintiff to set out the same in his declaration, and to introduce the same as a part of his proofs, and to aver and prove the performance of the warranty on his part, as a condition precedent to his right of recovery, and on the ground that there was a fatal variance,” etc. This objection was sustained, but upon which of the grounds stated in it does not appear. It can hardly be contended that all the grounds of the objection must be good to authorize the Court to sustain it. If good only on the ground, “that it was the duty of the plaintiff to introduce the application as a part of his proofs,” the Court did right in sustaining it. This is the view taken of the objection by the counsel of the plaintiff in error, who, in his brief, resolves the objection into four distinct propositions, and very properly makes the one I have just stated the turning point of the question raised by the objection. Was it, then, incumbent on the plaintiff, before he could recover for a loss on this contract of insurance, to prove the application or its contents as a part of the contract, or was it properly a part of the defendants’ case, to be proved by them ? To a correct appreciation of this question, it is essential to consider the circumstances under which the question arose. The plaintiff had sued to recover a loss upon a contract of insurance alleged to have been made with him by the defenant, and had set out what he claimed to be that contract, in his declaration, according to what he claimed to be its legal effect. As the Court could not, without proof, judi — 445 — cially know that there was any contract, nor, if one existed, what was its legal effect, the burden of proving affirmatively that there was such a contract rested upon him. He proved the contents of a policy or contract of insurance, of which the following was one of the provisions: “That if this policy is made and issued upon, or refers to any application, survey, plan, or description of the property herein insured, such application, survey, plan or description shall be considered a part of this contract and a warranty by the assured.” It appeared from the plaintiff’s own testimony, as well as that of his only witness on a cross-examination, which we all agree was legitimate, that the policy was made and issued upon a written application made and signed by the plaintiff. The testimony in chief of the plaintiff and his witness tended to show a contract of insurance expressed only in a single paper — the policy. The cross-examination in connection with the policy proved on the direct examination, showed clearly and beyond a contradiction, that a part of the same contract of insurance was contained in another paper — the application, — but did not show what were its terms or contents. This testimony given on cross-examination and qualifying that given in chief, must be taken in connection with, and as a part of, the latter; and altogether must be considered as evidence given on the part of plaintiff. The existence of the application, as a part of the contract, was in no just sense a part of the defendants’ case; it related only to, and was a part of that contract, proof of which was essential to the plaintiff’s case, and without which he could not recover; while no contract was necessary to the defense. It is not, therefore, necessary to inquire upon whom the burden of proving the coateuts of the application might have rested, if the plaintiff had closed his evidence of the contract of insurance, without disclosing the existence of the other part of the contract — the application. He might then — 446 — have been entitled to rest upon the case he had made, and to contest the fact of the existence of the contract throughout the trial, if set up by the defendants; and this might, in such a case, throw upon the defendant the necessity of proving, the contents as well as the existence of the other part of the contract. But here the plaintiff cannot and does not contest the existence of the omitted part of the contract. He shows it clearly by the only witness he introduces, and swears to it himself. He shows that the part of the contract not introduced, as well as that produced, is in writing. He makes no offer to introduce it, nor to show that it was not within his reach, nor any effort to obtain or introduce it. For aught that appears it might have been in court and been had by asking for it. The Court are ignorant of its provisions and cannot therefore judge of its effect, or how far its provisions tend to modify the provisions of that part of the contract introduced. All they know is, that it is a written application for the insurance in question, and that, by the terms of the policy, it is made a part of the contract of insurance, and a warranty on the part of the plaintiff. From the nature of the case and of such kind of papers, usual in other cases, the Court cannot fail to see that there is at least a very high degree of probability, that the contents, if shown, might very materially modify the terms and legal effect of the policy of which it forms a part. The Court cannot presume that it was drawn up and executed and made a part of the contract for no purpose, and did not affect or modify the portion of the contract expressed in the policy, and upon that presumption, allow the plaintiff to recover upon proof of a part of the contract only, nor throAV upon the defendant the burden of proving the part omitted. Being, upon the plaintiff’s own showing, a part of the contract of insurance, that, and the other terms or portion of the contract contained in the — 447 — policy, must,- I think, without any showing to the contrary, be considered as one entire contract of insurance, one part of which was as necessary to be proved by the plaintiff as the other; and until both were proved, the contract was not proved, and neither Court nor jury could say what the contract was. The burden of this proof rested upon the plaintiff. He alleged the contract and sought to recover upon it. Was it for the defendant to show that the contract of 'insurance actually made between the parties, was not that set forth in the plaintiff’s declaration, before the plaintiff had introduced evidence fairly tending to show that it was ? Does the plaintiff’s evidence fairly tend to show that the contract of insurance actually made, was, as claimed in his declaration; while it shows, and'he admits, that the contract was contained in two separate papers, of which but one is introduced, and neither offers nor makes any attempt to produce the other and shows no ground for the .omission? Can he, under such circumstances, call upon, the Court to presume in his favor, that the part omitted was executed and made a pa.rt of the contract, without a purpose, or that it, in no respect, modifies the effect of the part he has chosen to produce ? Is it not the duty of the Court to say to the party: “You must first introduce the paper itself, or'prove its contents; and allow us, upon examination, to judge of its effect for ourselves. Until you do this, or show, at least, that you have taken the proper means to obtain and introduce it, the only presumption we are permitted to indulge, is, that being admitted to be a part of the contract, it would be very likely to have some effect upon the part introduced; and that, if you did not believe it would be prejudicial to your case, you would have introduced or made some effort to introduce it, instead of resting satisfied with the proof of a part of the contract?” Where a party having primary evidence in his power, resorts to secondary evidence in support of his case, Courts — 448 — do not hesitate to act upon the presumption that he resorts to the latter because the primary evidence, if given, might be less to his advantage; and the secondary evidence, is excluded on this ground. Is not the analagous presumption much stronger in cases like this? Again, as all parts of a contract are to be construed together, and the meaning and effect of no part can be certainly known and appreciated, until the whole is examined, can the contract be considered as properly in evidence before the whole has been proved ? Such a question suggests its own answer. —See 1 Greenl. Ev. secs 88 and 96. It is not enough to say, that, until the application is shown, it cannot be known that it would modify the effects of the contract as expressed in the policy. It is sufficient to say in reply, that while'the plaintiff, seeking to recover upon the contract, purposely leaves this question in doubt, without showing any reason for not offering or attempting to obtain or prove it and thereby to remove the doubt, he has offered no proper evidence of what the contract was; and the fact which he did introduce was properly excluded from the consideration of the jury. This view seems to me to rest upon principles so clearly sound, as to require no support from authority. I have, however, examined all the cases cited by the respective counsel and am entirely satisfied that this view is sustained by the decided preponderance of authority; and that, when properly considered, the cases cited for the opposite conclusions will be found to contain very little in opposition to the conclusion I have arrived at.. I have not the time or space to enter upon a full review of the cases; but shall content myself with a reference to some of those only which appear to me to be best founded in principle and most directly applicable to the circumstances of this case. Cunningham v. Shaw. 7 Penn., 401 was assumpsit on an agreement to' pay bills drawn under letters of credit. Plaintiff having proved his case by writing signed by the — 449 — defendant, it appeared on cross-examination of one of the plaintiff’s witnesses, that the plaintiff had signed a paper which the witness called a confirmation, the contents of which were not shown, but which defendant insisted should be put in evidence by the plaintiff as a part of his case, which plaintiff refused and was non-suited. This, on error brought, was held correct; the Court saying — “This paper was offered to the plaintiff as a part of the contract, but he declined to use it or give it in evidence. Now, this was the stipulation or promise of the plaintiff, counterpart to that of the defendant. It was the plaintiff’s part of the contract, and might have been material to the plaintiff’s right to recover.” The Court further say — “The contract consisted of letters between the agents of the parties, the letters of credit, and the engagement on the part of the plaintiff; and, when all taken together, may have shown that the promises were concurrent and dependent; in which case it would have been incumbent on the plaintiff to aver and prove a readiness and willingness to perform his part.” And further, — “Nor is it sufficient to allege that the plaintiff’s part of the contract merely limited the responsibility, and did not destroy the contract. That may be true; but that is the very question which ought to have been made patent before the- Court by the plaintiff.” So in Alabama & Tennessee R. R. Co. v. Nabors, 37 Ala., 489, assumpsit for money loaned. The evidence of the loan was in a writing, signed by the defendant, in which it was said, “ this loan is made on the conditions and terms stated in the resolutions of the Board of Directors, passed June 13, 1856, and recorded in the minutes.” The plaintiffs were held bound to prove these resolutions as a part of their case. It was held by this Court in Lester v. Sutton, 7 Mich., 329, that when a party introduces in evidence a letter from the opposite party to prove a contract; if such letter was — 450 — written in reply to one from himself, he must also introduce the latter in evidence. An analagous principle is involved in that large class of cases, where an action is brought upon the common counts for work and labor, goods sold and delivered, etc., and other like cases, and it appears in evidence given on the part of the plaintiff, by cross-examination or otherwise, that there was a special written contract which is not introduced by the plaintiff. See among others Ladue v. Seymour, 24 Wend. 60; Kersteter v. Raymond, 10 Ind. 199; Vincent v. Cole, 10 Mood, and Malk. 257; Jeffrey v. Walton, 1 Stark. 267; see also Buxton v. Cornish, 12 M. & W. 426. And a similar principle may be said to be involved in all those cases, where a party, seeking to recover or defend on the ground of a contract, resorts to verbal evidence, when it appears upon cross examination of his own witnesses, that the contract is in writing, and he fails to introduce it. But in these cases, the principle which excludes the verbal evidence is not, it seems to me, so strong, as that which should, in the present case, exclude the evidence of ope entire contract, written upon two sheets, when the plaintiff introduces but one, and offers no evidence at all of the other. But it is further urged that the mere fact of the application being in the possession of the defendant, absolves the plaintiff from all obligation to introduce it, or to take any step, or to make any effort to obtain or offer it in evidence; and not only this, but that it throws upon the defendant the burden of proving it as a part of his defense. I do not think that any part of this proposition is sound in principle, or supported by authority. Mr. .Greenleaf, in his worK on evidence, v.ól. 1, sec. 87, speaking of the rule excluding oral evidence of contracts, etc., when the fact is provable by a written instrument, says: “ The fact, that in such cases, the writing is in the possession of the adverse party, does not change its charac — 451 — ter; it is still the primary evidence of the contract, and its absence must be accounted for by notice to the other party to produce it, or in some other legal mode, before secondary evidence of its contents can be received.” See cases cited in note, and note 860 of Gowen & Hill’s notes to Phil. Ev. If this must be done before secondary evidence is received, it would certainly seem that as much as this should be required, before the Court should allow the plaintiff to recover upon part of a contract, without any evidence at all of the other part. I think there is no error in the record and that the judgment should be affirmed.