Young v. Newark Fire Ins. Co.

• Decision Date: 15 April 1890
• Citation: 59 Conn. 41,22 A. 32
• Parties: YOUNG et al. v. NEWARK FIRE INS. CO.
• Court: Connecticut Supreme Court

22 A. 32

59 Conn. 41

YOUNG et al.

v. NEWARK FIRE INS. CO.

Supreme Court of Errors of Connecticut.

April 15, 1890.

Appeal from superior court, Tolland county; Sanford, Judge.

Action by George T. Young and another against the Newark Fire Insurance Company. There was a verdict for plaintiffs, and defendant appeals.

C. E. Perkins and A. Perkins, for appellant.

A. P. Hyde and F. E. Hyde, for appellees.

FENN, J. This is an action brought to recover upon a fire insurance policy on a stock of merchandise. The complaint alleged the plaintiff's ownership; the execution of the policy by the defendant in consideration of a premium paid; a fire; the filing of proof of loss; and that the defendant had failed to pay. The answer is as follows: "The defendant admits all the allegations contained in the plaintiffs' complaint. First defense: On the ninth day of March, 1888, the paintiffs applied to an agent of the defendant at Hartford, Connecticut, for insurance on the property described in said policy, and said agent thereupon executed and delivered the said policy to the plaintiffs, upon the condition that said policy should not become effective and in force until it was approved by the proper officers of said company at the home office thereof, at Newark, New Jersey, and said policy was received on said condition. Afterwards, on the 13th day of March, 1888, the said officers at the home office refused to approve said issue of said policy, and the said agent of the defendant so notified the plaintiffs, and notified them that said policy was null and void, and demanded the return of the same, which was refused." There was a further defense, but it was afterwards abandoned. The plaintiffs' reply denied the allegation of the first defense, thus forming a single and distinct issue. The case was tried to a jury, which returned a verdict for the plaintiffs, and from the judgment rendered thereon the defendant appeals.

The defendant on the trial, upon the pleadings, claimed the right to begin, and to open and close the argument. The court overruled this claim, and permitted the plaintiffs to go forward in evidence and argument. Of this the defendant complains, and not without good reason, as we think. The court charged the jury "that all the allegations of the complaint were admitted by the pleadings, and that the burden of proof was upon the defendant to make out its defense by a preponderance of evidence." This the defendant admitted and claimed, and it is undoubtedly correct and in plain conformity with the provisions of section 6, pt. 3, of the rules under the practice act, on page 16 of the volume containing the act, by which it clearly appears that such a defense as the defendant interposed could not have been proved under either a general or special denial of the complaint, but required to be specially alleged. That, notwithstanding this, the court should have denied the defendant the right claimed, appears to us to have been in direct contravention of section 3, pt. 3, of the general rules of practice, which provides that "the counsel in support of the affirmative of an issue of fact will be entitled to begin the trial, and to open and close the argument." But, although the provisions of Gen. St. § 772, give to such rules the force of statutes, yet, as this court in Scott v. Hull, 8 Conn. 303, and Weed's Appeal, 35 Conn. 452, has treated this matter as one resting exclusively in the discretion of the trial court, for which error will not lie, and as a new trial must be granted in this case for other and more important reasons, we prefer not to determine now whether this has ceased to be a pure matter of discretion, or whether, if it remains such, there is not a limit, the transgression of which would justify the interposition of this court. We cannot conceive that, upon a new trial of this issue, the court below will again refuse the defendant a privilege to which we think he is so manifestly entitled.

The policy described in the complaint contained this provision, being paragraph 5, § 1: "If any broker or other person than the assured have procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured and not of this company in any transaction relating to the insurance." The defendant, as the record states, "offered evidence to prove that one Frazier, a member of the firm of Webster & Co., who were general insurance agents in Hartford, applied to one Dillingham, who was the general agent of the defendant in Connecticut, to procure the policy in question for the plaintiffs, and that it was agreed between Dillingham and Frazier that the policy should not take effect and be a binding policy until the risk was accepted at the home office of the defendant in Newark New Jersey, and that the policy was delivered upon such condition; that the defendant company refused to accept the risk, and that notice thereof was given to Webster & Co. within a few days after the date of the policy, and that they were requested to redeliver the policy to Dillingham as never having become binding; and the defendant claimed that, by force of that provision in the policy, Webster & Co. and Frazier, in applying to Dillingham to write the policy, were the agents of the plaintiffs, and that any agreement made with them by Dillingham in relation to the delivery of the policy, and as to when it should become a valid and binding policy, was binding upon the plaintiffs. The plaintiffs in reply offered evidence to...