Fisher v. Crescent Ins. Co.
| Citation | 33 F. 549 |
| Parties | FISHER v. CRESCENT INS. CO. |
| Decision Date | 01 January 1887 |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
H. C Jones and C. M. Jordan, for plaintiff.
Burwell & Walker and F. I. Osborne, for defendant.
In considering this motion for a new trial we are called upon to construe the covenant and agreement of the plaintiff contained in the following clause of his application for insurance:
'And the said applicant hereby covenants and agrees, to and with the said company, that the foregoing is a just, true, and full exposition of all the facts and circumstances in regard to the condition, situation, and value of the property to be insured, so far as the same are known to the applicant; and the same is hereby made a condition of the insurance, and a warranty on the part of the insured.'
This clause was prepared by the experienced and skillful agents of the company, and was printed in the form of application used in its general business; and in construction the words thus carefully and purposely employed must be taken most strongly against the party who formed and furnished the instrument to the applicant. If this clause was intended by the company to be a strict warranty, then the words, 'so far as the same are known to the applicant,' are unnecessary, and are well calculated to mislead inexperienced and confiding applicants, who listen to and rely upon the urgent and plausible statements and suggestions of eager and expert agents. As both parties to this contract of insurance were required by law to act with entire candor, fairness, and honesty, we may well presume that they fully understood words employed by them in their usual and ordinary meaning, and intended to deal in good faith with each other, and did not contemplate technical objections and niceties not distinctly expressed or necessarily implied in the terms of their contract. It certainly could not have been the purpose of the company to impose upon the plaintiff the strict obligations of warranty when he was only required to make 'a just, true, and full exposition of all the facts and circumstances in regard to the condition, situation, and value of the property to be insured, so far as the same are known to the applicant. ' Such words are inconsistent with an honest intention of requiring a strict warranty assuring full knowledge and absolute truth; and a forced construction, holding them to constitute such an engagement would tend to impute to the company a skillful and technical artifice devised for the purpose of deception and fraud.
The defendant, in its answer in this case, made no direct charge of fraud against the plaintiff, and there was no evidence of any fraudulent purpose, and we have no right to infer bad faith. He testified that he acted in good faith, and with an honest purpose, and availed himself of what he regarded as reliable sources of correct information, before he made his representations as to the quantity and value of the whisky which he desired to insure. The operations of his distillery were suspended in September; his books had been sent to the collector of the district; his whisky was in a bonded warehouse of the government, under the custody and exclusive control of a store-keeper, in a distant town; and he had no right to require the presence of the store-keeper to gain access to the warehouse, unless he was ready and willing to pay taxes, and remove packages. He wished to insure the whisky because he was not prepared to pay the taxes, and remove packages, and, in the mean time, he wished to guard against damage and loss that might happen by fire. He examined the warehouse book in which the law required the store-keeper to keep an accurate list of the packages and number of gallons in the warehouse, and also the amount at any time withdrawn. He showed this book to the local agents of the company, who assisted him in making a computation of the quantity of whisky...
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