Northwestern Iron Co. v. Ætna Insurance , 26 Wis. 78 ( 1870 )

Paine, J.

The letter of May to Dorr was properly admitted in evidence for the purpose of showing, as it did clearly, that the defendant, through its agent, had notice of all the facts respecting the contract, after which its still retaining the money for the premium would constitute a ratification, even if there had been any defect in the original authority of the agent to make such contract. The want of evidence of this character was one of the grounds for reversing the judgment when the case was formerly here, as reported in the 21st Wis. 458.

The appellant further claims that parol evidence that the property was to be insured on deck was inadmissible. He says the evidence was uncontradicted and conclusive that the agreement to insure had reference and was subject to the terms and conditions of the written policies. And he then claims that inasmuch as the policies require a special indorsement to that effect, in order to constitute an agreement to insure on deck, therefore no such agreement could he shown by parol. But such a position is irreconcilable with our decision when this case was last here (23 Wis. 160), where it was held that a contract for insurance might be made by parol. The necessary result of that doctrine, when applied to a custom like'that disclosed by the defendant’s evidence — to make insurance by parol agreement, which was nevertheless considered subject to the terms of the written policies— is, that any particular provision which, if the contract had been by a written policy must have been specially indorsed on it, may nevertheless, where the contract is by parol, be made by parol with the same effect. For where no policy is issued, there can of course be no indorsement. And the only application which such a provision in the written policies could have to a contract for insurance made by parol, would be that the particular matter should be specially mentioned and agreed to by the parties. To hold otherwise would be to say, that while a parol contract for insurance is valid, yet all those particular provisions which it is necessary to mention specially in written policies, must be excluded from it entirely. This would be unreasonable. When these companies, for their own convenience or for the mutual convenience of themselves and their customers, introduce the custom of substituting parol contract's of insurance for written ones, with the understanding that these parol contracts are nevertheless to be subject to the terms and conditions of the written policies, that understanding must itself be subject, of necessity, to this qualification : that the parol contracts are subject to those terms and conditions only so far as in the nature of things they can be applied.

The question whether in this case there was a special permission to ship the insured property on deck, was submitted to the jury on the conflicting evidence, and they found for the plaintiff. There was no error in admitting the evidence.

Nor was the fact that the plaintiff had not set out in his complaint all these terms and conditions of the written policies, any ground for excluding his evidence on account of a variance. It did not appear, until the defendant’s testimony had been introduced, that those terms and conditions were any part of the contract. Assuming that the defendant’s evidence as to the custom had the effect of incorporating them into it, the very fact that they were prepared with such evidence shows that they were not misled by the variance, but were perfectly cognizant of the nature of the plaintiff’s claim, and were prepared to contest it upon the assumption that the real contract was as they claimed it to be. The only one of the conditons under which they suggested any defense, was that in relation to the property being on deck, and on that both sides introduced their evidence. There was no claim or pretense on the part of the defendant that it was taken by surprise, or that it had any further evidence that it might have procured on this contested point. • If the complaint was defective in not setting out more fully these terms, which we do not determine, the court should have permitted an amendment on the trial. And the admission of the plaintiff’s evidence to avoid the effect of the defendant’s proof of the custom, was, under the circumstances, no ground for a réversal.

The court, in its charge, after stating to the jury that the contract was valid, but was subject to the terms of the written policies, added: “ The plaintiff would therefore be entitled to recover the insurance money in case of a loss.” This was excepted to; the only possible reason would seem to be, because the court did not add the qualification that the loss must be one within the terms of the agreement, But that was clearly implied. No juror could misunderstand such, a remark, or suppose for a moment that the court meant, because a contract for insurance had been made, therefore the assured could recover for any loss without reference to the question whether it was one insured against or not. It is to be assumed that juries understand the remarks of courts to have reference to the subject-matter about which they are speaking. And if, when so understood, they are plain and unmistakable in their meaning, it cannot be ground for reversing a judgment that a qualification to a general remark which was clearly implied, was not actually expressed. It is not to be supposed that a jury that could have misunderstood it as it was, would have been able to understand an express qualification if it had been added. The court fairly submitted the questions of fact really involved, and told the jury expressly that if they found for the defendant on these, the plaintiff could not recover.

The other exceptions to the charge involve merely the questions that have been already considered. There was no error, and the judgment must be affirmed.

By the Court. — Judgment affirmed.