Majority
p. 501Roberts vs. The Chenango County Mutual Insurance Company.
Headnote
A paper purporting to be conditions of insurance, if annexed to and delivered with a policy, is to be deemed prima facie a part of it; and this, whether referred to in the policy by express words, or not. tAccordingly, though a policy contained no reference in terms to any other paper, yet it having been made by using a printed form covering the half of an ontire sheet, upon the other half of which was a printed statement commencing thus— “ Conditions of Insurance”—and specifying certain acts of the assured which, if done, should render the policy void: Held, that the statement was a part of the policy, at least prima fade; and that a violation of its provisions rendered the insurance void.
The legal effect of a paper thus annexed to a policy may be destroyed by parol evidence that the annexation was by mistake.
Assumpsit, tried at the Oneida circuit in April, 1842, before Gridley, C. Judge. The action was on a policy of insurance bearing date the 19th of June, 1838, by which the defendants
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undertook and promised to insure the dwelling house of the plaintiff against fire, for the term of five years. The dwelling house was destroyed on the 19th of February, 1841, by a fire which originated in a building adjoining it on the north, owned by another person.
The policy was made by using a form printed on the half of an entire sheet of paper • and on the other half sheet there was a printed statement, commencing thus—“ Conditions of Insurance”—but no express reference to this was made in the body of the policy. The statement contained the following, among other clauses : “ If, after insurance is effected, the risk of the property shall be increased by any means whatever within the control of the assured, &c. such insurance shall be void and of no effect.” The defendants, proved that, in 1839, the plaintiff erected an addition to the south end of his dwelling house, eighteen feet wide and twenty-two feet long, having a basement story, a chimney and fire place in it, with a stove in the basement, and a dumb stove in the next room above ; the pipe of these running into the chimney. It was objected at the trial that this addition was such an increase of the risk insured against as constituted a breach of the condition, and that therefore the policy was void. The circuit judge overruled the objection on the ground that the printed statement in which the alleged condition was contained, constituted no part of the policy. The defendants excepted. Verdict for the plaintiff, $443,34. The defendants now moved for a new trial on a bill of exceptions.
JV*. Hill, Jr. for the defendants.
8. Beardsley, for the plaintiff.
As I understand this case, the policy was printed on one half of the sheet, and the “ conditions of insurance” on the other. There can be no doubt of the intent that both should be taken together. The assured
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accepts the policy with what purports to be conditions on the same sheet or any sheet physically attached., There is, in such case, no need of an express reference by the policy to the conditions in order to fix the meaning. (Emerson v. Murray, 4 N. H. Rey. 171 ; Stocking v. Fairchild, 5 Pick. 181 .) The juxtaposition of the papers is a sufficient expression, at least yrima facie. That may be rebutted by parol evidence, as by showing that the two were thus connected by mistake ; but no attempt to disannex them was made on the trial, and, for aught I see, the legal effect was conceded. The proof of the building having been added by the assured so as to increase the risk, without the assent of, or even notice to the company, was received without making an objection that the conditions were not intended as a part of the policy. It would be impossible to sustain the decision in Bize v. Fletcher, (Doug. 12, note (4,)) if the slip wafered to the policy had, like this, expressly declared itself to be conditions of insurance. There can be no doubt that the addition of the building avoided the policy, if conditions plainly expressed and as plainly violated can ever have that effect. There was no pretence that the risk was not increased. If there was really any question upon that, it should have been left to the jury. It cannot be denied judicially, in the face of the proof. I do not go into the other questions which have been made. .
New trial granted.