Sidebilder
PDF
ePub

1

drawn from the testimony that defendant drank "intoxicants to steady his nerves for the commission of the crime." The instruction was applicable to the evidence.

and that he inflicted the wounds from which his wife died. The accused relies upon the defense of insanity. After a second reading of the record, we are fully satisfied that the defendant at the time fully comprehended what he was doing; that his mind was clear; and that, with deliberation and premeditation, be committed one of the most atrocious murders that has come under our observation. The evidence bearing upon the defense of insanity was fairly submitted to the jury under proper instructions, and the verdict has settled that point against the defendant. The assignment that the verdict is unsupported by the evidence must be overruled.

any single fact or element necessary to constitute the crime of murder in the first degree, it is your duty to give him the benefit of such doubt, and acquit him of that crime; and if, upon a like consideration of the evidence, you It is also urged that the evidence is insuthientertain a reasonable doubt as to the existence cient to sustain the verdict. The evidence is of any single fact or element necessary to con- uncontradicted that the defendant purchased stitute the crime of murder in the second de-a revolver a short time before the homicide, gree, you should give him the benefit of such doubt, and also acquit him of that charge. You should likewise acquit him of the charge of manslaughter, if, upon a full and fair consideration of the evidence, you entertain a reasonable doubt of the existence of any fact necessary to constitute that offense." The fore going was a full and clear statement of the law upon the question, and put, and properly, the burden upon the state to make out its case at every point beyond a reasonable doubt, al though it would have been more appropriate to have used the word "degree" instead of "crime." To convict of murder in the first degree, it was necessary that the act be done with deliberation and premeditation; and, if the evidence left any reasonable doubt upon the minds of the jury as to whether there was any deliberation or premeditation, they knew from the charge that they could not convict him of the highest degree of murder, and they knew, too, that it was not incumbent upon the accused to prove his ixtoxication at the time the mortal wounds were given, since they were told that the state was required to establish every fact or element necessary to constitute the crime by the evidence beyond a reasonable doubt. This is not a case of conflicting instructions, nor does the instruction criticised undertake to impose the burden of showing intoxication upon the defendant, but the rule upon that point was covered by the general instructions upon the burden of proof. The doctrine is well settled that instructions must be construed together; and if, when so considered, the law is properly stated, it is sufficient. St. Louis v. State, 8 Neb. 406; Murphy v. State, 15 Neb. 383; Lincoln v. Smith, 28 Neb. 762.

There was sufficient evidence before the jury upon which to base the latter portion of the twenty-fourth instruction. The evidence dis closes that the defendant often drank liquors to excess, and, when under the influence of intoxicants, he is cross and rough; that after he first saw his wife on the morning of the tragedy, and before its occurrence, he drank liquors. The defendant testified that, on the day of the shooting, he took the priest to Genoa. "I was drinking outside. It was carried out in pails. I got 25 cents worth of beer, and 25 cents worth of rum." The inference could properly be 34 L. R. A.

Finally, it is insisted that the defendant did not have a fair and impartial trial, on account of alleged misconduct of the audience in attendance upon the trial. It appears that, at the close of the argument of the county attorney to the jury, the spectators applauded by stamping of feet and clapping of hands, which applause was immediately suppressed by the presiding judge, who rebuked the persons for making the same. It was also shown that the applause was without the knowledge or connivance of those connected with the prosecu tion. The record fails to disclose what was said by the prosecutor in his closing address, nor does it appear from the showing made that the applause was in approval of the sentiments expressed by the county attorney. The incident complained of occurred in the presence and hearing of the trial judge, and he is better enabled than we to determine the effect, if any, the applause had upon the jury. By overruling the motion for a new trial, containing an assignment relating thereto, submitted upon the affidavits both on behalf of the accused and the state, the trial court must have been of the opinion that the demonstration was not of such a character as to influence the verdict; and no prejudice being shown, its determination will not be interfered with. Edney v. Baum, 44 Neb. 294; State v. Dusenberry, 112 Mo. 277.

The accused has been accorded a fair trial, and, no prejudicial error appearing in the record, the judgment is affirmed.

January 10, 1896, fixed for the execution of the sentence imposed by the trial court.

CALIFORNIA SUPREME COURT (Department 1).

Joseph YOCH, Respt.,

2.

HOME MUTUAL INSURANCE COMPANY, Appt.

(111 Cal. 503.)

1. Gasoline kept as part of the usual stock of merchandise will not avoid a policy in which a written description of the property insured names such stock "as is usually kept in country stores," although a printed condition declares that the policy shall be void if certain articles, including gasoline, are kept, used. or allowed on the premises.

2. Written parts of an insurance policy will control printed parts, and in case of repugnancy the latter must be disregarded. 3. An "agreement indorsed," permitting otherwise prohibited articles to be kept on insured premises, is made where the articles are included in the written description of the property insured.

a higher rate of premium would have been charged, and this, in and of itself, determines materiality.

Ryan v. Springfield F. & M. Ins. Co. 46 Wis. 671; May, ins. 184; Civ. Code, § 2565. It was explained that the rate of premium to be charged and collected was dependent upon the number of rooms in the house, and Brooks admits his signature to the application in which that number is falsely stated. This would seem to make a clear case of a knowingly false statement by an authorized agent, and for such statement the principal is liable. Stockton Combined Harvester & A. Works v. Glen's Falls Ins. Co. 98 Cal. 557.

By signing the application he adopted it and warranted it as true, and by such adoption and warrant the same result ensues as if he had in the first instance made it.

New York L. Ins. Co. v. Fletcher, 117 U. S. 519, 29 L. ed. 934; Richardson v. Maine Ins. Co. 46 Me. 394, 74 Am. Dec. 459. Misrepresentation as to a material fact will

4. Untrue answers to questions in an appli- avoid the policy, even although innocently

cation for insurance do not constitute a concealment or misrepresentation by the insured which

will make the policy void, where the misstatements were written by the insurance agent without any direction or knowledge of the insured. 5. Leading questions may be permitted where the only objection is that they are irrelevant and immaterial.

(Beatty, Ch. J., dissents.)

(March 11, 1896.)

APPEAL by defendant from a judgment of

the Superior Court for Orange County in favor of plaintiff in an action brought to recover the amount alleged to be due on a policy of fire insurance. Affirmed.

The facts are stated in the opinion. Messrs. Van Ness & Redman, for appellant:

The policy expressly provided that it should be void if gasoline was allowed or kept upon the premises, and as it was so kept, ipso facto, liability upon the part of the defendant ceased. Civ. Code, 2611, 2612; Cerf v. Home Ins. Co. 44 Cal. 320, 13 Am. Rep. 165; Commercial Ins. Co. v. Mehlman, 48 Ill. 313, 95 Am. Dec. 543; Beer v. Forest City Mut. Ins. Co. 39 Ohio St. 109.

In Lancaster F. Ins. Co. v. Lenheim, 89 Pa. 497, 33 Am. Rep. 778, the effect of policy clauses similar to those in the case in hand was considered, and the conclusion reached that they were not inconsistent or repugnant, and that the prohibitory clause was of controlling effect.

The statement concerning the number of rooms in the building was material, and if false, and made by the insured, it avoided the policy.

If the truth had been known by the company

made.

May, Ins. 2d ed. p. 218; Phillips, Ins. § 337; Flanders, Ins. p. 327; Carpenter v. American Ins. Co. 1 Story, C. C. 57; Continental Ins. Co. v. Kasey, 25 Gratt. 268, 18 Am. Rep. 681.

Petition for rehearing in banc.

The decision in department is not sustained by a single authority, and is opposed to authorities cited, but not referred to, in the opinion.

Lancaster F. Ins. Co. v. Lenheim, 89 Pa. 497, 33 Am. Rep. 778, note; Cobb v. Insurance Co. of N. A. 17 Kan. 492; Birmingham F. Ins. Co. v. Kroegher, 83 Pa. 64, 24 Am. Rep. 147.

Messrs. Victor Montgomery and Will. iam T. Kendrick, for respondent:

Gasoline was an article of merchandise usually kept in a country store, and was customarily kept in the store building, but in a separate room from the other stock.

The description of the property, which, as we have seen, includes gasoline, is in writing, and the provision "all while contained in above described building" is also in writing, and if the printed portion of the policy does absolutely forbid the keeping of it there, the printed clause so forbidding is repugnant to the written clause and therefore of no force or effect.

Civ. Code, SS 1652, 1441; Wood, Fire Ins. 2d ed. § 206, p. 491; Pindar v. Kings County F. Ins. Co. 36 N. Y. 648, 93 Am. Dec. 544; Franklin F. Ins. Co. v. Updegraff, 43 Pa. 353; Elliott v. Hamilton Mut. Ins. Co. 13 Gray, 139; Reynolds v. Commerce F. Ins. Co. 47 N. Y. 597.

The burden of showing the written representation was upon the appellant, and if there is any doubt or uncertainty the construction must be in favor of the insured and against forfeiture.

Wood, Fire Ins. 2d ed. § 62.

Dungan was in fact the agent of the com

NOTE. For cases similar to the above, see Faust | Maril v. Connecticut F. Ins. Co. (Ga.) 30 L. R. A. v. American F. Ins. Co. (Wis.) 30 L. R. A. 783; and 835.

pany. The information furnished by him was at the request of the company's authorized agent, it was for the company's benefit, and the company paid him for the information.

Hartford F. Ins. Co. v. Josey, 6 Tex. Civ. App. 290: Commercial U. Assur. Co. v. Elliott (Pa.) 13 Atl. 970.

Dungan had acted as foreman while the house was being built, it had been recently completed and he knew as much about the house as Mr. or Mrs. Brooks did.

Burke v. Bours, 92 Cal. 108; Insurance Co. of Pennsylvania v. O'Connell, 34 Ill. App. 357; Arff v. Star F. Ins. Co. 125 N. Y. 57, 10 L. R. A. 609.

Dungan's knowledge as to the number of rooms in the house was the company's knowledge.

Reynolds v. Iowa & N. Ins. Co. 80 Iowa, 563. At the time the application was made out the insured had no notice as to the scope of Free man's authority to employ Dungan to make a diagram of the building for the use of the company. The act was within the general scope of his apparent authority and is binding upon the company.

Wheaton v. North British & M. Ins. Co. 76 Cal. 415; Farnum v. Phænix Ins. Co. 83 Cal. 246, and cases therein cited on page 257.

In filling out the printed form of the application furnished by the company, Freeman acted for the company and his act in writing down a false statement without Brooks' knowl edge would not avoid the policy even though Brooks did sign the application without ing.

alleged, as grounds of defense, that the insured kept for sale and allowed gasoline upon the premises, in violation of the terms and con ditions of the policy, and that, in her written application for the policy, she made a material misrepresentation in reference to the building to be insured. The cause was tried by a jury, and a verdict rendered in favor of the plaintiff. From the judgment entered thereon, and an order denying a new trial, the defendant has appealed.

The policy was made out upon a printed form, in which, after the agreement of insurance, there were printed certain conditions to be observed by the insured, and certain limitations upon the liability of the insurer. In the insurance part of the policy the defendant insured Mrs. Brooks for the term of one year against all direct loss or damage by fire, "except as hereinafter provided," and intermediate this part of the policy and the printed conditions and limitations were written, with pen and ink, the description of the property upon which the insurance was made. One of these printed conditions was as follows: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . . if (any usage or custom of trade or manufacture to the contrary not withstanding) there be kept, used, or allowed on the above-described premises benzine, benzole, gasoline, Greek fire, etc." Testimony was given at the trial tending to show that gasoline is one of the articles of merchandise usually read-kept in country stores, but that it is customary to keep it in a room or building by itself. It was also shown that, during the month prior to the fire, the insured would, in the daytime, bring small quantities of gasoline-one or two cans-from a building on another lot, which was used for storing it, into a room within the insured building, and adjacent to the store, for the purpose of selling it at retail to her customers. Upon this evidence the defendant requested the court to instruct the jury: "If, from the evidence, you find that, during the period between the delivery to plaintiff of the policy of insurance in this action sued on and the fire, gasoline was at any time for several days kept for sale in the building described in the policy, or in any part of said building, your verdict should be for the defendant." The court refused this instruction, but told the jury: "If you find, from the evidence in this case, that gasoline was, during all or any portion of said time between the issuance of said policy and the said fire, an article of merchandise usually kept in country stores, then and in such case the fact that the insured did keep for sale or allow gasoline, if she did, either by herself or agent, allowing or keeping such article on the insured premises-that is, habitually-is no defense to this action." It is urged by the appellant that, in giving this instruction, and also in refusing to give the one asked by it, the court erred.

Continental Ins. Co. v. Pearce, 39 Kan. 396; McComb v. Council Bluffs Ins. Co. 83 Iowa, 247; Germania L. Ins. Co. v. Lunkenheimer, 127 Ind. 536; Follette v. United States Mut. Acci. Asso. 107 N. C. 240, 12 L. R. A. 315; Wheaton v. North British & M. Ins. Co. 76 Cal. 415; Beebe v. Ohio Farmers' Ins. Co. 93 Mich. 514, 18 L. R. A. 481.

The misrepresentation referred to in the policy is a wilfully false or intentional misrepresentation.

National Bank v. Union Ins. Co. 88 Cal. 497; Wheaton v. North British & M. Ins. Co.

supra.

The company through its agents Freeman and Dungan made a personal inspection of the building, and had actual knowledge of the number of rooms contained therein.

Under such circumstances the company is estopped from denying its liability on the policy.

Dcelling House Ins. Co. v. Brodie, 52 Ark. 11, 4 L. R. A. 458.

Harrison, J., delivered the opinion of the

court:

The defendant issued its policy of insurance against fire to Mrs. W. H. Brooks, the assignor of the plaintiff, in the sum of $4,000, upon a frame building occupied as a country store, and also upon household furniture and the stock of merchandise, such as is usually kept in country stores," while contained in said building. Before the expiration of the policy the insured property was totally destroyed, and the present action is brought to recover for the loss thereby sustained. The defendant

A contract of insurance is to be interpreted by the same rule as is any other contract. It must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable. If it is reduced to writing, the intention of the parties is to be ascertained

it must be held that this was an "agreement indorsed" upon the policy which removed the exemption from liability that would otherwise have existed. Niagara F. Ins. Co. v. DeGraff, 12 Mich. 124. If there be any repugnance between the written phrase "such as is usually kept in country stores," and the printed clause, "any usage or custom of trade or manufacture to the contrary notwithstanding," the former controls the latter, as being the more deliberate expression of the contracting parties. Fraim v. National F. Ins. Co. 170 Pa. 151; Civ. Code, § 1651.

Counsel for appellant has cited the case of Lancaster F. Ins. Co. v. Lenheim, 89 Pa. 497, in support of his contention; but this case seems to stand by itself. Mr. Freeman, in his note to the case (33 Am. Rep. 778), says that the case "is utterly opposed to the decisions in all the other states, and that it is quite difficult to reconcile it with previous decisions in the same state." A subsequent case in the same state (Fraim v. National F. Ins. Co. supra) appears to be at variance with the rule in the Lenheim Case. It may also be observed that the opinion of the court in the Lenheim Case rested materially upon the fact that, in the policy then before it, the condition exempting the insurer from liability for loss where turpentine was kept, was "in immediate connection" with the clause by which it insured the property speci fied, "except as hereinafter provided,” whereas, in the present case, the words "except as hereinafter provided" are in direct proximity to the words "loss or damage by fire" which is insured against and may be regarded as a limitation upon the causes of fire against which the insurance is made, rather than as a qualifi cation of the contract of insurance. In subse

from the writing alone, if possible. The whole contract is to be taken together. When it is partly written and partly printed, the written parts control the printed parts, and, if there is any repugnancy between the two, the printed part must be disregarded. It may be explained by reference to the circumstances under which it was made. In cases of uncertainty it is to be interpreted most strongly against the party who caused the uncertainty to exist. Civ. Code, 1636-1654. Applying these rules to the contract in the present case, it must be held that it was the intention of the defendant to insure gasoline, if it was an article usually kept in country stores, and that, if such was its intention, it was no violation of the policy for the insured to keep gasoline upon the premises as a part of the stock of merchandise. When the defendant agreed to insure a stock of merchandise "such as is usually kept in country stores," it must be presumed to have known the character of the merchandise which is usually kept in country stores, and that gasoline was one of these articles, and, consequently, that its policy covered all such mer chandise, Harper v. Albany Mut. Ins. Co. 17 N. Y. 194; Pindar v. Kings County F. Ins. Co. 36 N. Y. 648, 93 Am. Dec. 544. The court would have no judicial knowledge of the character of merchandise which is usually kept in country stores, and it was therefore competent to offer evidence upon that point, for the purpose of enabling it, when interpreting the language of the policy, to understand the matter to which it related, and the circum stances under which it was made. Elliott v. Hamilton Mut. Ins. Co. 13 Gray, 139; Whitmarsh v. Conway F. Ins. Co. 16 Gray, 359, 77 Am. Dec. 414; Archer v. Merchants' & Mfrs. Ins. Co. 43 Mo. 434; Maril v. Connecticut F.quent portions of the policy there are certain Ins. Co. 95 Ga. 604, 30 L. R. A. $35; Fraim v. National F. Ins. Co. 170 Pa. 151; Wood, Ins. 64; May, Ins. § 239. When it was shown that gasoline is one of the articles which is usually kept in country stores, the court correctly held that it was a part of the subject of the insurance, and that the insured did not violate the policy by keeping it in stock. The defendant, when it issued the policy in question, knew the character of a country store, and that Mrs. Brooks kept it for the purpose of retailing to her customers all of the articles kept by her, and that the gasoline which she kept was to be disposed of by retail in the same way as the other portion of her stock. To give to the policy the construction now claimed by the defendant would be to hold that, although it agreed with her to insure all the stock she usually kept in her store, yet, if she continued to keep that stock, she forfeited all rights under the policy. The clause in the policy above quoted, and which is relied on by the appellant, cannot be construed as hav ing this effect. The qualification therein which excepts the policy from becoming void, viz, "unless otherwise provided by agreement indorsed hereon," is found in the policy itself. The subject matter of the risk-the stock of merchandise such as is usually kept in country stores," was written on the policy by the insurer; and, as the defendant must be deemed to have intended thereby to insure all such articles as are usually kept in a country store,

causes of loss for which the insurer expressly declares that it will not, under any circumstances, be liable; and it is more reasonable to construe these as the matter referred to by the phrase "except as hereinafter provided," than those provisions in which it is declared that in certain contingencies the policy shall be "void."

The policy sued on contains the following provision: "This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof." It is alleged, in the answer, that the policy was issued upon the written application of the assured, in which it was stated that the building to be insured contained less than fifteen rooms, whereas, in fact, it contained twenty rooms; and that the materiality of this representation consisted in the fact that the rate of premium for the risk assumed was greater for a building of twenty rooms than it was for a building with fifteen rooms. It was sufficiently shown at the trial that the building contained more than twenty rooms, but it was also shown that the statement in the application that there were less than fifteen rooms was written therein by the agent of the defendant from information which he had obtained at his own instance, and without any direction on the part of the insured, from one Dungan, the carpenter who had butilt the house; and it was not shown that

either the assured or her husband had made any statements or representations to the agent in reference thereto. The defendant offered in evidence a document signed by Mr. Brooks which is claimed to be the application. This document is indorsed: "Daily Report of Policy Issued for the Home Mutual Insurance Company. Instructions to Agents." The face of the policy is headed, "Questions," with the following direction, evidently intended for the agent of the defendant, viz.: "By having the following questions so fully answered that the company can get a clear idea of the risk, and can verify rates, the agent will avoid much unnecessary correspondence." Under this are various printed questions, numbered consecutively to twenty-five, and beneath these printed questions there was written, upon a blank line on this printed page: (26) Less than fifteen rooms." The agent of the defendant testified that, before he presented this document to Mr. Brooks for signature, he had written these words in the application from information which he had obtained from Dungan, and he did not testify that he made any inquiry of Mr. Brooks concerning the number of rooms in the house. Mr. Brooks testified that, when the application was presented to him for his signature, he signed it without reading it, and that, when he signed it, he had no knowledge that these words were there. It does not clearly appear whether the matter referred to in these words was the subject of a question which was intended to be put to Mr. Brooks, and to which no answer was written in the application, or whether the words constitute a statement written by the agent of the defendant for the information of his principal. It is quite as consistent with the evidence on this point that the jury should have found that these words were written by the agent for the information of the company, as that they were an answer to any question put to Mr. Brooks by the agent. In the line numbered 24, the questions, "Have you personally examined the risk?" and "Do you recommend it?" are evidently questions which were to be answered by the agent, and he testified that the answer to the next question, "Has the risk been recently rejected?" to which the answer "No" is written, was not discussed by him with Mr. Brooks.

The court instructed the jury, in substance, that if Mr. Brooks, in applying for the policy, made a written representation that the building contained less than fifteen rooms, they should find for the defendant; but, if they should find that the facts contained in the application respecting the number of rooms were obtained by the defendant from Dungan, and from the diagram or plans furnished by him, and that Brooks made no representation personally in the matter, but signed the application without knowing what it contained as to the number of rooms, it did not constitute a defense. This instruction properly directed the jury in their deliberations upon their verdict, and their verdict thereunder is justified 34 L. R. A.

by the evidence. Whether Mr. Brooks made any representations to the agent concerning the number of rooms in the house was to be de termined upon a direct conflict of evidence: aud, if the jury believed that he did not, his signing the application with the ambiguous phrase, "Less than fifteen rooms," without knowing that it was there or the purpose for which it had been inserted, cannot be con strued as a written representation by him that the building contained less than fifteen rooms. The rule that one who sigus an instrument which contains terms of obligation upon him self is not absolved from such obligation by showing that he signed the instrument without reading it, has no application like the present. where the instrument signed contains no words of obligation, and the clause invoked against the signer does not purport to be a statement by him, or in answer to a question put to him. The policy sued on does not refer to this application, or in any way incorporate its contents into the conditions upon which the contract of insurance is made: but the appellant sought by extrinsic evidence to connect the two instruments, and make the one dependent upon the contents of the other. In such a case the evidence should be very clear that the statements in the application relied on to defeat the action were made by the applicant, and that. at the time of making them, the applicant knew that they were to form the basis of the policy to be issued to him. Dunbar v. Phenix Ins. Co. 72 Wis. 492; Schwarzbach v. Ohio Valley Protectire Union, 25 W. Va. 663; Combs v. Hannibal Sav. & Ins. Co. 43 Mo. 148, 97 Am. Dec. 383; Rowley v. Empire Ins. Co. 36 N. Y. 550; May, Ins. § 144 et seq.

Certain rulings of the court at the trial were excepted to by the appellant, but we are of the opinion that no error was committed in these rulings. The question asked of Freeman. "In whose handwriting was the statement, Less than fifteen rooms?" was subsequently stated by him to be in his own handwriting. The question whether Brooks stated to him that there were less than fifteen rooms in the building was clearly leading, and was properly excluded upon that objection. Whether Brooks made such a statement was a material point of inquiry, and it would have been competent for the defendant to ask of Freeman whether any statement was made by him on that subject, and, if so, what it was; but the defendant omitted to make such inquiry. Equally proper was it for the plaintiff to show by Brooks that he did not make such statement, and that, at the time he signed the application, he was not aware that the statement was there. The only objection to these questions was that they were irrelevant and immaterial, and this ob jection was properly overruled.

The judgment and order are affirmed.

We concur: Garoutte, J.; Van Fleet, J.

Rehearing in banc denied, Beatty, Ch. J., dissenting.

« ForrigeFortsett »