Conner v. Manchester Assur. Co.

• Decision Date: 23 May 1904
• Docket Number: 1,029.
• Citation: 130 F. 743
• Parties: CONNER et al. v. MANCHESTER ASSUR. CO. OF MANCHESTER, ENGLAND.
• Court: U.S. Court of Appeals — Ninth Circuit

130 F. 743

CONNER et al. v. MANCHESTER ASSUR. CO. OF MANCHESTER, ENGLAND.

No. 1,029.

United States Court of Appeals, Ninth Circuit.

May 23, 1904

On June 9, 1902, the defendant in error, in consideration of a premium paid it by the plaintiffs in error, executed and delivered to them a certificate of insurance, certifying that in consideration of the payment of said premium, it insured them against loss or damage by fire to the amount of $3,300 on their interest in a certain grain crop situated on certain described premises. The certificate proceeded to recite that it was understood and agreed that the insurance 'is subject to all the terms and conditions embraced in open policy numbered 4,401,070, which is made a part hereof to the amount specified herein. ' Among the terms and conditions embraced in said open policy so referred to in the certificate were the following: 'This company shall not be liable for loss caused directly or indirectly by invasion insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority. ' The plaintiffs in error did not at any time see the said 'open policy,' nor did they know of the conditions thereof prior to the fire hereinafter referred to, and said policy always was in the exclusive possession of the defendant in error. In the month of June, 1902, lands in the county in which the land referred to in the certificate is situated were threatened with public disaster by a plague of grasshoppers, and on June 17, 1903, the board of supervisors of said county made an order referring to the threatened danger from said pest, and reciting that the only practical method of destroying the same and saving the orchards and vineyards in said county was by burning the grass upon certain pasture land, and ordering that the grass thereon be condemned and destroyed by fire. The order was carried out and the fire was started at a point from three to four miles distant from the land upon which the grain of the plaintiff's in error was situated, but it got beyond control and reached the land of the plaintiffs in error, and burned their grain insured as aforesaid, and no other fire contributed to the loss. On these facts the Circuit Court, on an action brought to recover on the policy, denied the right of the plaintiffs in error to recover.

Rosenbaum & Scheeline, for plaintiffs in error.

Goodfellow & Eells, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge, after stating the facts as above, .

It is contended on behalf of the plaintiffs in error that they are not bound by the terms and conditions expressed in the 'open policy' referred to in the certificate of insurance, for the reason that they never assented thereto and that said provisions were not contained in the instrument which they received from the insurance company. They rely upon the following sections of the Civil Code of California.'

'Sec. 2605. Every express warranty, made at or before the execution of a policy must be contained in the policy itself, or in another instrument signed by the insured and referred to in the policy, as making a part of it.'

'Sec. 2607. A statement in a policy, of a matter relating to the person or thing insured, or to the risk, as a fact, is an express warranty thereof.

'Sec. 2608. A statement in a policy, which imports that it is intended to do or not to do a thing which materially affects the risk, is a warranty that such act or omission shall take place.'

It is contended that under these provisions of the Code the stipulation referred to in the so-called 'open policy,' that the insurance company should not be liable for loss caused directly or indirectly by order of any civil authority, is a warranty, and is therefore no part of the insurance contract, since it was not contained in the policy itself, nor in another instrument signed by the insured and referred to in the policy as making a part of it. We do not think the statute was intended to create any new definition of a warranty to insurance. In Bouvier's Law Dictionary it is said that a warranty in insurance is 'a stipulation or agreement, on the part of the insured party, in the nature of a condition'; and in Phillips on Insurance, Sec. 754, it is said:

'An express warranty is an agreement expressed in the policy, whereby the assured stipulates that certain facts are or shall be true, or certain acts shall be done relative to the risk. It may relate to an existing or past fact, or be promissory and relate to the future.'

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