I am unable to agree with the prevailing opinion. This is an action at law upon a policy of fire insurance; there is no suggestion in the complaint that a reformation of the contract is desired, nor was there at the trial of the action. The plaintiff has recovered on the policy as it stands. The record contains an abbreviated statement of the contents of the policy, and discloses a printed list of twenty distinct items, with the dollar sign preceding each one and a space left between this and the balance of the item to fill in the amount insured. Three of these items as thus printed read, respectively, "On barn No. 1, on barn No. 2, and on barn No. 3." Three other printed items read: "On hay and grain in barn No. 1, on hay and grain in barn No. 2, and on hay and grain in barn No. 3." It will thus be seen that the practice indulged in by the defendant under this form of policy is calculated to be very deficient in detailed description and tends to mislead. The construction of such a policy on its face must be strictly in favor of the insured and against the company. *Page 274
Before considering what buildings were covered by this policy, it is well to revert to the undisputed facts in this case. The decision of the Appellate Division was unanimous, but reference to the facts is necessary in order to understand the legal questions sought to be raised. This action is brought by the mortgagee, who held the policy as security for her loan. The mortgagor and owner of the premises is Sophie Courtois. The premises in question is farm property situated in Palmyra township, Pike county, Pennsylvania. On July 7th, 1888, and at a time when the premises were insured in the Greenwich Insurance Company of the city of New York, Mrs. Courtois received a letter from the agent of that company to the effect that he could not renew the insurance on account of its being situated too far from New York, and advising her to place it with some other agent; he suggested C. Patterson Son, No. 71 Wall street, New York, agents of the defendant company, as proper persons to represent her, and sent her a copy of the policy of the Greenwich Insurance Company.
On the 9th of July, 1888, Mrs. Courtois addressed to Patterson Son a letter, inclosing the Greenwich policy and stating that it would tell them what she wanted done. It will be observed that this was more than a year before the policy was issued by the defendant which is involved in this action. The policy took effect July 18th, 1889, and receipt for premium is dated July 23rd, 1889. Mrs. Courtois testified that before this policy was issued she went to Patterson Son's office, 71 Wall street, in New York, and was told that Patterson was not there, but saw his representative who took notes; she said, * * * "I told him house." She further testifies that at that interview she left the deed of the property as they wished to see it. She further swore: "I told him to insure all the buildings; * * * I did not receive a policy; I went two weeks afterwards and asked if the policy was ready, and about it; they said that the policy was not ready, but I paid the premium that day," etc.
At this point exhibit "D," which is the receipt for the premium *Page 275 above referred to, was put in evidence and bears date July 23rd, 1889. Mrs. Courtois testified, in substance, without objection, that some years before this insurance was taken out the dwelling house situated on the north side of the highway was burned without insurance; that the grain barn was on the same side of the road with the house that was burned; and the other two barns, the cattle barn and the wagon shop were on the south side of the road. She further stated that they did not rebuild the dwelling house, but finished off some rooms in which to reside in one portion of the grain barn, and continued thereafter, notwithstanding these alterations, to store in the other part of the barn grain and seed to be used for planting and sowing; that no grain was ever stored in the barns or dwellings on the south side of the road. The witness further stated that the living apartments in this barn were occupied by her husband, herself and the man who assisted in working the farm, who seems to be described in the complaint as tenant, but the precise business relations he sustained towards Mrs. Courtois do not appear in detail; he is sometimes spoken of as a tenant and sometimes as a hired man.
Keeping in mind these undisputed facts, in the record without objection, we approach the examination of this policy, which is nothing more than a filling out of certain of the printed items already described. Preceding the item "on barn No. 1" is filled in $500, and then stamped upon the policy, not printed, are the words "occupied by tenant." Preceding the printed item "On hay and grain in barn No. 1" is filled in $650. Preceding the printed item "On wagon house" is filled in $200. Preceding the printed item "On wagons and sleighs while in said barn" is filled in $100. Preceding the printed item "On carriages and harness therein" is filled in $150. Preceding the printed item "Two horses, not to exceed $100 on each horse," is filled in $200, making a total of $1,800.
It seems to me very apparent the statement that only one building is covered by the terms of this policy is erroneous on *Page 276 the face thereof, and the situation is rendered perfectly clear by Mrs. Courtois' evidence received without objection. No force whatever has been given to the words "occupied by tenant." The fact confronting the agent in drawing the policy was the rather unusual situation of a grain barn having rooms fitted off for a residence and still being used in part for storing grain. The first printed item in this policy reads "On dwelling house." To have described the structure subject to this dual use as a dwelling house would have been inaccurate, and, consequently, to fill it in as a barn occupied by tenant, while it might have been more definite, is quite sufficient, in construing this policy strictly in favor of the insured.
The prevailing opinion assumes that Mrs. Courtois never met the representatives of the company, and that this insurance is based solely on correspondence and the application drawn by one agent of the company and sent to another agent thereof unsigned by the insured and without her knowledge or consent. The evidence already referred to shows that this position is erroneous; that the insured did meet the representative of the company; that she afterwards called again and paid the premium on the policy and received a receipt therefor; that at her first interview defendant's agent was instructed to insure all the buildings.
The important question is whether this application was admissible in evidence as offered by the defendant. The trial court held that it was not and the Appellate Division has affirmed this ruling. It is stated in the prevailing opinion in this court that it is entirely immaterial whether the insured signed this application or had any knowledge of it. The case ofSanders v. Cooper (115 N.Y. 279) is cited as on all fours with the case at bar, and as deciding that an application unsigned by the insured was competent evidence. In that case, as in this, the action was at law upon the policy and two defenses were pleaded: First, that the building burned was not the building mentioned in the application and survey and insured by the policy; and, second, that there was undisclosed *Page 277 insurance. It is only the first defense that is now material.
The defendant, to establish the first defense, relied upon the following facts: (1) The policy insured property described in the application and survey bearing even date with it, and which was referred to "as forming a part of the policy;" (2) the application accurately described a tenant house; (3) the survey on back of application showed the tenant house and other buildings, and under the tenant house was the word "risk;" (4) the millhouse (the house burned) was a half mile away from tenant house and corresponded in no respect (except height) with the building described in the application and survey; (5) the application and survey were forwarded to the company and the policy issued thereon.
The court held that, reading the policy and the application, which was made a part of it, there was "no possible room for question that the company, when it issued the policy, intended to insure the tenant house and not the millhouse. * * * It is quite impossible to treat this policy as a contract insuring the millhouse if the application and survey are considered in ascertaining the subject of insurance."
It was in view of the fact that the policy, on which the plaintiff sought to recover, made the application a part thereof that the court said it was "immaterial whether the application was made by the authority of the insured or not, or whether it was genuine or forged."
This was clearly so; the plaintiff had, as matter of law, accepted the application as containing the only description of the property, and sued thereon. Can it be properly or accurately said that the case cited is authority for the admission of an application in evidence in the case at bar, which was not a part of the policy, which was drawn by one of the defendant's agents and sent to another of the defendant's agents, after the verbal application was made, which was never heard of by the insured until produced at the trial? Surely if such a paper is competent the insured is at the mercy of the company. Furthermore, in the case cited, the insured, *Page 278 confronted by a policy which contained a clear and accurate description of the building insured, sought to prove that it was intended to cover a building different in description and located half a mile distant from the subject of insurance. It was in view of this situation that the court said that the evidence of plaintiff, "while it might tend to establish a case for the reformation of the contract, would be inadmissible to sustain an action to enforce the contract as written, as though it applied to the building intended to be covered, but not described in the policy." Here again we have a clear distinction between the case cited and the one before us. In the latter case the plaintiff stands on the description in the policy, to wit: "$500 on barn No. 1 (stamped), occupied by tenant."
The prevailing opinion states that "the fact that there was a statement that the building insured was occupied by a tenant does not necessarily mean or imply that a tenant was actually residing in it." It was for that very reason that the trial judge said to the jury, when referring to these words "occupied by tenant," stamped on the policy, "you may take into consideration the fact that the defendant used its own words in writing the description in the policy of the property and that the plaintiff is entitled to a construction of these words most favorable to her." No exception was taken to this charge; the jury found those words did describe the building destroyed, and the Appellate Division have unanimously affirmed the judgment entered on the verdict.
There was no effort in this case, as in the case cited, to depart from the plain language of the contract and make the policy apply to property not described. The precise reverse was true and the recovery was on the face of the policy as written.
Judge ANDREWS alludes, incidentally, in the case cited (115 N Y at p. 285) to the rule that governs in the case at bar; he says: "The subject of the insurance is to be ascertained from the description in the policy and such extrinsic evidence as may be necessary to identify the property described."
This was the object of plaintiff's evidence, to identify the *Page 279 property described. It was shown that the insured told the agent to insure all the buildings, gave him her old policy as a guide, which did cover all the buildings.
It was also shown that the grain barn on the north side of the road was changed, in part, into a dwelling house and that the tenant or hired man did occupy it. All this evidence satisfied the jury as to the identity of the property and made the contract clear on its face. This evidence was not condemned in the case cited, but, on the contrary, was specially approved.
The case cited has no application to the case before us in my judgment, and I am of opinion that the trial judge properly refused to admit the application in evidence.
There are two other exceptions which are urged in support of reversal. It is insisted that the Greenwich policy, heretofore alluded to, should have been admitted in evidence. If anybody was prejudiced by its rejection it was the plaintiff, as that policy, the abstract of which is printed in the record, shows that it insured, among others, the building occupied by the tenant on the north side of the road. It is a little difficult to understand why the plaintiff's attorney should have objected to the admission of this policy, but its rejection does not call for a reversal of the judgment for two reasons — the defendant was not prejudiced by its exclusion, and it was immaterial as pointed out by the Appellate Division. The plaintiff must stand on the policy in suit.
The other exception relates to the exclusion of secondary evidence as to the contents of a letter alleged to have been written by the agent in New York to Mrs. Courtois. He testified that he caused to be mailed to her the policy in suit and that he inclosed therein a certain letter, the contents of which are not disclosed. Plaintiff's counsel was notified to produce the original of this letter on the trial. The plaintiff denied the existence of any such letter and objected to secondary evidence of its contents. The court sustained the objection on the ground that there was no proof of the mailing of any such letter. The argument is made that because *Page 280 Mrs. Courtois was in possession of the policy she must have received the letter. Mrs. Courtois was absolutely powerless to meet this situation, except to say that she never received any such letter, and the burden rested upon the defendant to show that such a letter was mailed. Unless strict proof is exacted in such a case, the door would be open to the admission of manufactured evidence.
I am of opinion that the recovery below is right and the judgment appealed from should be affirmed, with costs.
PARKER, Ch. J. (and MARTIN and VANN, JJ., on second ground in opinion), concur with O'BRIEN, J.; LANDON, J., concurs with BARTLETT, J.; CULLEN, J., not sitting.
Judgment reversed, etc.