Fidelity & Casualty Co. v. Phœnix Mfg. Co.

(xROSSOUP, Circuit Judge,

after stating the facts, delivered the opinion of the court.

It is clear to us that at the time the contract for indemnity was entered into the defendant in error was engaged in a general business that included the tearing down of buildings preparatory to the construction of new ones;- that the scope of its business in this particular was well known in that community; that the purpose of defendant in error in talcing out the insurance was to obtain indemnity against losses hv accident in this as well as in other lines of its general business; that the pay roll, made the basis for the premium rate, was meant to include the employés thus engaged; and that the occupations described in the application were meant by the insured to include, and did include, tbe employés thus employed. This evidence was all submitted to the jury, and, though not specially commented upon in the instructions of the court, must have entered into the deliberations and finding of the jury. Upon this evidence, if, indeed, not upon the face of the policy itself, the jury, in our .opinion, was clearly justified in finding that the men injured — carpenters — were, at the time of the injury, engaged in one of the occu-*607pa I ions covered by the policy of insurance. The trial in the circuit court seems to have gone; off mainly upon the conception that clause 4 of the application, relating to the trade; and business of the insured, controlled the scope of the insurance; and that, unless the occupations of the men injured were 'within a fair interpretation of such clause, the plaintiff in error would not be liable. This clause of (he application does not, in onr opinion, give substantial scope and effect to the insurance. At most it is only a clause of representation or warranty. If, in that attitude, it deceived, or- was calculated to deceive, the insurance company, the policy might thereby be avoided; but the evidence submitted shows, and the jury, upon in-sinúe lions certainly in favor of the insurance company, found, that the term “general woodwork” was commonly understood to include the character of work upon which the eniployés injured were, at the time, engaged, and that at the lime the policy was taken out the slate agent of the insurance company, writing up the application, not only so interpreted it, but himself suggested it as a term broad, enough to cover every line of business in which the defendant in error was then engaged. Whatever, therefore, may be the technical meaning of clause 4, the court was well within the authority of Insurance Co. v. Mahone, 21 Wall. 152, 22 L. Ed. 593, and Insurance Co. v. Baker, 94 U. S. 610, 24 L. Ed. 268, in holding that it was not necessarily unambiguous, and in submitting its meaning, as corn-, monly understood, and as agreed upon by the parties, to the jury, as one of the questions of fact in the case. We see no error, in this respect, either in the admission of the evidence objected to or in l he instructions applied by the court. Indeed, looking upon this clause as one of representation only, and not as the clause of the application that gave scope to the insurance, the charge of the court appears to have been much more favorable to the plaintiff in error than, under our view of this case, it ought to have obtained. If the court below mistook clause 4, — a merely incidental issue, — as we view it, for the substantial issue in the case, the injury arising therefrom affected the insured, and not the insurer. If an error, it did not prejudice the case of the plaintiff in error.

Nor was (here any error in admitting the receipt for the excess premium, and in submitting it as one of the facts to the jury. It was clearly pertinent to show' to what extent the parties understood the pay roll, as covering the employes injured in the accident.

On the whole case, after a careful examination of all the evidence submitted, we are of tin; opinion that the defendant in error was entitled to recover upon the policy of insurance, that the verdict of the jury is clearly sustained, and that there was no error in the trial in the circuit court that in any degree prejudiced the cause of the plaintiff in error. The judgment will be affirmed.