Maryland Fire Ins. Co. v. Gusdorf

• Decision Date: 21 January 1876
• Citation: 43 Md. 506
• Parties: THE MARYLAND FIRE INSURANCE COMPANY v. ALEXANDER GUSDORF.
• Court: Maryland Court of Appeals

43 Md. 506

THE MARYLAND FIRE INSURANCE COMPANY v. ALEXANDER GUSDORF.

Court of Appeals of Maryland

January 21, 1876

APPEAL from the Superior Court of Baltimore City.

This was an action of assumpsit brought by the appellee on a policy of insurance, executed on the 20th of December 1872, and issued by the appellant. The facts of the case will sufficiently appear in the opinion of the Court. The verdict and judgment were for the plaintiff, and the defendant appealed.

The cause was argued before BARTOL, C.J., BOWIE, STEWART, MILLER and ALVEY, J.

N.M. Pusey, for the appellant.

This is the case of a plaintiff seeking to enforce a covenant against a defendant, and at the same time introducing parol evidence of a waiver of a stipulation in that covenant--it is the introduction of parol evidence for the purpose of making a covenant apply to a totally different subject-matter from that expressly stated in the covenant.

The evidence admitted by the Court below, was improperly admitted for the following reasons:

1st. Had it not been that all errors of pleading were waived, the appellee under his declaration, could not have introduced the policy in evidence; but, having given the policy in evidence the case then stands as if he had brought an action of covenant upon the policy, and in that event he could not have introduced the evidence, because it would have been a variance between the allegata and probata. Neale, et al. vs. Fowler, 31 Md., 155.

2nd. It is a general and well established rule of evidence applicable to written contracts, whether under seal or not, that parol testimony cannot be received to contradict, vary, add to or subtract form their terms; the reason of the rule being that such a course "would tend in many instances to substitute a new and different contract for the one which was already agreed upon." 1 Greenleaf on Ev., sec. 275; Boyce vs. Wilson, 32 Md., 122, 127, 128; Planters' Mutual Ins. Co. vs. Deford, et al., 38 Md., 396.

3rd. At the time this consent to a removal of the goods was alleged to have been given, the goods were still in the store where they were when the insurance was effected--no loss had happened, and of course no breach had occurred. Upon this state of facts the evidence was improperly admitted. Watchman and Bratt vs. Crook, 5 G. & J., 239, 258; Franklin Fire Ins. Co. vs. Hamill, 5 Md., 170, 183, 185.

4th. To allow the appellee, in an action on this policy, founded upon an alleged breach on the part of the appellant to make good to him any such loss or damage as shall happen during one year from the date of the policy, to show by parol what was the subject-matter, the loss or damage to which appellant had covenanted to make good, would be contrary to the well established principle of the law that it is inconsistent with the legal attributes of an instrument under seal that it should rest partly in writing and partly in parol. Newcomer, et al. vs. Kline, 11 G. & J., 457, 465, 470; Clarke vs. Lancaster's Lessee, 36 Md., 196, 203, 204.

5th. The evidence was improperly admitted because the words "contained in three story brick building" were designed to limit the risk of the company to the time the goods were in the particular building in which they were when the policy was issued--the word "contained" as used in the policy is restrictive; and the policy expressly states that "anything less than a distinct agreement endorsed on this policy, shall not be construed as a waiver of any written or printed condition, restriction or stipulation herein contained." Annapolis & E. R. R. vs. Balto. Fire Ins. Co., 32 Md., 37; Wood vs. Hartford Fire Ins. Co., 13 Conn., 533, 544; Eddy St. Iron Foundry vs. Hampden Fire Ins. Co., 1 Clifford, 303; Boynton vs. Clinton and Essex Mutual Ins. Co., 16 Barbour, 254, 258; Lycoming Co. Ins. Co. vs. Updegraff, 40 Penn., 321; Lewis vs. Springfield Fire Ins. Co., 10 Gray, 160, 161; Bradley vs. Potomac Fire Ins. Co., 32 Md., 115; Schaefer vs. Balto. Marine Ins. Co., 33 Md., 109; Balto. Fire Ins. Co. vs. Loney, et al., 20 Md., 35, 36; Franklin Fire Ins. Co. of Balt. vs. Chicago Ice Co., 36 Md., 118.

The remedy of the appellee, if he had any, was in equity. National Fire Ins. Co. vs. Crane, 16 Md., 261, 295; Carpenter vs. Providence Wash. Ins. Co., 16 Peters, 495; Boyce vs. Wilson, 32 Md., 129.

The Court erred in its instruction because it nowhere appears in evidence that Mr. Milnor had authority to waive any of the conditions, restrictions or stipulations in the policy; such conduct was not within the scope of his ordinary duties, and the policy gave the appellee notice that the powers of the officers of the company were limited in that respect. Bank of the U.S. vs. Dunn, 6 Pet., 51; Leppoc, et al. vs. National Union Bk., 32 Md., 146; Com mercial Mutual Ins. Co. vs. Union Mutual Ins. Co., 19 How., 322.

Wm. F. Frick, for the appellee.

Without raising the question, whether the removal of the goods into an adjoining house, precisely similar to that in which they were at the time of insurance--required a written assent on the part of the Company, in view of the general terms of description adopted by it in the policy, as to the location of the goods, to wit: "In a three story brick building, gravel roof, situated at Culpeper, Virginia," (inasmuch as the written description of the risk and location was still absolutely true, as well after the removal as before;) it is sufficient to say, that even if such an endorsement was necessary, the Company is equitably estopped by the conduct of the President, from raising any such defence. To allow it, would be to sanction the perpetration of a fraud by the company upon the insured. Natl. Fire Ins. Co. vs. Crane, 16 Md., 295; May on Insurance, sec. 499, et seq. (Ed. of 1873;) Union Mutual Ins. Co. vs. Wilkinson, 13 Wall., 222; Franklin vs. Atlantic Fire Ins. Co., 42 Missouri, 460; Rowley vs. Empire Ins. Co., 36 N. Y., 554; Combs vs. Hannibal Ins. Co., 43 Missouri, 150; Horwitz vs. Equitable Mut. Ins. Co., 40 Missouri, 560; Hyatt vs. Waite, 37 Barb., N. Y., 29.

MILLER J., delivered the opinion of the Court.

This case involves a small amount of money, but presents a question of much importance in insurance law, which has not hitherto been decided in this State. By the policy sued on, the appellants, in consideration of a premium of $25, paid them by the appellee, insured the latter for one year, to the amount of $2000, "on stock of goods such as are generally kept in a country store, contained in three story brick building situated at Culpeper City, Culpeper County, Virginia." Among others, the policy contains a clause or provision "that anything less than a distinct agreement endorsed on this policy shall not be construed as a waiver of any written or printed condition, restriction, or stipulation herein contained." The action was in assumpsit, and the policy was under seal, but all errors of pleading were waived by agreement. The fire and damage to the goods to the extent, as found by the jury, of $429.81, occurred during the year, but not until after the goods had been removed to an adjoining building. The insurance was effected by the plaintiff himself, by negotiations with the president of the company, who issued the policy. As to the circumstances under which the goods were removed, the plaintiff testified that some time previous to the removal he went to the company's office, and there saw the president, and notified him that he desired to move the stock of goods into another brick building, adjoining that in which they then were, and of the same character, and that he desired to know if there was any objection to his so doing; that the president then asked him if he had his policy with him, to which, not knowing it was necessary he should have brought it, witness replied that he had not brought the policy with him; that the president then said it was no matter, that he would fix it all right, and witness understood him to say it was not necessary for him to bring the policy. The Court, against the objection of the company, admitted this testimony, and instructed the jury that if they found it to be true, then the company cannot avail itself, as a defence to this action, of the fact that the goods were so removed, and that the permission to do so was not endorsed on the policy. Are these rulings correct?

Apart from decisions elsewhere to the same effect, our own decision, in Annapolis & Elk Ridge Rail Road Co. vs. The Baltimore Fire Ins. Co., 32 Md., 37, is conclusive upon us that the terms " contained in" a particular building, limit the risk to the time...