General Rules.

Germania Fire Ins. Co., 54 Pa. 277. 6.- Construction of, and principles

Assured bound by acceptance of governing a policy, do not differ from

General Rules.

strongly against the company can be resorted to only when, after using such helps as are proper to arrive at the intent of the parties, some of the language used, or some phrase, is of doubtful import. Foot v. Etna Ins. Co., 61 N. Y. 571.

14.- Paragraphs and clauses of policy should not be construed so as to make them conflict with each other, if such a construction can be avoided. They should be construed so as to make them harmonize, if such a construction is possible; and so as to give to each and all their terms full force and operation. The intention of the parties is the end and object in construction of all instruments. Cobb v. Ins. Co. N. A., 17 Kans. 492.

meaning must be obvious, and require no straining in order to provoke a forfeiture. Woodruff v. Imperial Fire Ins. Co., 83 N. Y. 133.

20. Parties having expressly agreed upon terms of the contract, I am unable to see anything reprehensible in law or morals where a party insists upon all lawful conditions imposed by a contract to which both gave their free assent. Parties make contracts for themselves, and, in the absence of fraud or mistake, it is right that due observance should be required of their lawful provisions. It does not lie with the court to relieve either because of an apparent hardship in the enforcement of terms and conditions, delib15.- Conditions and provisos in poli-erately considered and expressly agreed cies of insurance are to be construed upon. Bockes, J. Gilligan v. Commerstrictly against the underwriters, as they cial Ins. Co., 20 Hun, 93; affi'd 87 N. Y. tend to narrow the range and limit the 626 (no opinion). force of the principal obligation. Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405. Morse v. Buffalo Fire Ins. Co., 30 Wis. 534; Westchester Fire Ins. Co. v. Earl, 33 Mich. 143; Aurora F. Ins. Co. v. Kranich, 36 Mich. 289.

21.- Contracts of insurance are to be construed as other contracts. All parts of the contract are to be taken together; and they shall be liberally construed; and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties, and no portion of it shall receive such a con

16. The conditions of a policy indorsed in small type upon the back of it are not part of it to bind the assured, un-struction as will tend to defeat the obvious less they are distinctly drawn to the at-general purpose of the parties entering tention of the insured at the time of the contract. Bassell v. American Fire Ins. Co., 2 Hughes, 531 (U. S. Cir.)

17. Forfeitures are not encouraged in law. When forfeitures of insurance policies rest on substantial grounds corresponding to the risk, courts will uphold them, but when they rest on purely technical grounds not going to the risk, the contract of insurance is to be upheld if it can be without violation of any principle of law. Appleton Iron Co. v. British American Assurance Co., 46 Wis. 23.

into the contract. Crane v. City Ins. Co., 3 Fed. Rep. 558; s. P. Barber v. F. & M. Ins. Co., 16 W. Va. 658.

22. If parties to an insurance contract have a different understanding of an oral contract, after it is reduced to writing and executed, both are bound in equity and at law by the terms of the written contract, and it must be construed by the court. German American Ins. Co. v. Davis, 10 Ins. L. J. 670; 131 Mass. 316. 23. The fundamental principle of fire insurance is indemnity, and if ever a 18. The words of an insurance con- proposition is brought forward which tract need not be taken in sense in which is at variance with it, that is to say, they may have been understood by under- which either will prevent full indemnity writers. They must be taken in their to insured, or which will give him more ordinary sense, as commonly used and than full indemnity, that proposition understood; and if the sense in which must certainly be wrong. So held in apthey were used is uncertain, they should plying the principle of subrogation. Casbe construed most favorably to the as-tellain v. Preston, L. R. 11 Q. B. Div. 380 sured. Herrman v. Merchants' Ins. Co., (Eng.)

81 N. Y. 184.

24. Courts can not make new con

19.- Insurance contract should be en-tracts for the parties to an insurance conforced according to its true spirit, but its tract nor refuse to enforce a contract they

General Rules.

33.- Insurance companies cannot escape from payment of a valid claim through mere technicalities. Authorities cited. Universal F. Ins. Co. v. Block, 109 Pa. 535.

make for themselves. Meadows v. Hawk- thorities cited. Morrison v. North Amereye Ins. Co., 13 Ins. L. J. 377; 62 Iowa 387. ica Ins. Co., 3 N. Eng. Rep. 161; 6 Ins. L. 25.— Where contract is plain, unam-J. 966; 64 N. H. 137. biguous, and fair, not vitiated by fraud nor mistake, courts are not authorized to make for the parties to it a different one, or to construe it contrary to its express terms, specially when the consequence may be to enable one of the parties to profit by his wrongful violation of it. Stevenson v. Phoenix Ins. Co., 14 Ins. L. J. 65; 83 Ky. 7.

--

26. An indorsement on the back of a policy is a part of the contract only when it is referred to in the policy as constituting part of it. If no reference to it in the policy, nothing to show that parties intended it to be a part of the contract, it is regarded as the act of the company alone, and not binding on the insured. Planters' Mutual Ins. Co. v. Rowland, 16 Ins. L. J. 345; 66 Md. 236.

27.— The construction best corresponding with the intention of parties should be adopted by the court in construing policies of fire insurance. Authorities cited in Straus v. Imperial F. Ins. Co., 13 West. Rep. 118; 6 S. W. 698; 94 Mo. 182; Vanderhoef v. Agricultural Ins. Co., 46 Hun, 328; 12 N. Y. S. Rep. 341.

34.- Courts will not draw fine distinctions or be nice about the grammatical construction of sentences in insurance contracts or others, in order to sustain a defense in which there is no merit. Fire Ins. Asso. v. Merchants' & M. Transp. Co., 66 Md. 339.

35. After liability actually attaches under a policy of insurance, the entire relation between the parties is changed from that of insurer and insured to that of debtor and creditor; and clauses in the policy which provide that certain acts or omissions of the insured shall invalidate it are thereafter inoperative. Seyk v. Millers' Nat. Ins. Co., 74 Wis. 67; 3 L. R. A. 523; 41 N. W. Rep. 443.

36. The issue being whether the punctuation had been altered,-held, another similar policy was not admissible. Boright v. Springfield F. & M. Ins. Co., 34 Minn. 352.

28.— An insurance policy is the final 37.— In an action upon a policy the contract between the parties, and super-court should construe other policies given sedes all preliminary agreements. Moore v. State Ins. Co., 72 Iowa 414; 34 N. W. Rep. 183.

29. A fire insurance policy is a unilateral contract, and its acceptance by the assured operates as an assent to all the conditions intended to bind him, and they are as obligatory upon him as though he had signed the policy. Id.

in evidence, which affect the merits. Fire Ins. Asso. v. Merchants' & M. Transp. Co., 66 Md. 339.

38.-"The rules of construction are the same in construing these policies of insurance as in the case of any other instruments. That is laid down in Robertson v. French, 4 East. 130, where Lord Ellenborough says: 'In the course of

30.- Policies should be reasonably con- the argument it seems to have been asstrued and effect given to their provis-sumed that some peculiar rules of conions if possible. Mack v. Rochester German Ins. Co., 106 N. Y. 560; 13 N. East. Rep. 343; Springfield F. & M. Ins. Co. v. McLimans, 45 N. W. Rep. 171; 28 Neb. 846. 31. Any reasonable doubt as to the meaning of an insurance policy must be resolved in favor of the insured. DeGraff v. Queen Ins. Co., 38 Minn. 501; 38 N. W. Rep. 696; Watertown F. Ins. Co. v. Cherry, 84 Va. 72; 3 S. E. Rep. 876.

32. The term "policy" imports that the party insured holds a written contract to which that name has been given. Au

struction apply to the terms of a policy of assurance which are not equally applicable to the terms of other instruments and in all other cases; it is therefore proper to state upon this head that the same rule of construction which applies to all other instruments applies equally to this instrument of a policy of insurance, viz., that it is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary and popular

Assured Bound by Acceptance of Policy.

sense, unless they have generally, in re-
spect to the subject matter, as by the
known usage of trade or the like, acquired
a peculiar sense distinct from the popular
sense of the same words; or unless the
context evidently points out that they
must in the particular instance, and in
order to effectuate the immediate inten-
tion of the parties to that contract, be
understood in some other special and
peculiar sense.'
'"*Hart v. Standard Ins.
Co., 60 L. T. Rep. N. S. 649; L. R. 22 Q.
B. Div. 499 (Eng.); and see * Allen v.
German Amer. Ins. Co., 123 N. Y. 12;
Ripley v. Etna Ins. Co., 30 N. Y. 136;
* Connecticut Fire Ins. Co. v.
Ins. L. J. 558; 14 S. E. Rep. 851 (Va.);
Mitchell v. City of London Ins. Co., 12
Ont. 706 (Can.)

Co., 48 Hun, 204; 15 N. Y. S. Rep. 581. 44. An insurance contract is to be liberally construed so as to give it effect if possible; and conditions creating forfeitures are to be construed most strongly against the insurer. * McNamara V. Dakota F. & M. Ins. Co., 47 N. W. Rep. 288 (S. D.); *Illinois Mutual Ins. Co. v. Hoffman, 31 Ill. App. 295.

45.- Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms used; and if they are clear and unambiguous their terms are to be understood in their plain, ordinary, and popular sense. Tilley, 21* Universal L. Ins. Co. v. Decore, 16 Va. L. J. 114; 11 Ry. & Corp. L. J. 176; 14 S. E. Rep. 532.

46. The conditions of a policy of in39.- Forfeitures under insurance poli-surance are no part of the consideration. cies are not favored, and should not be enforced unless the courts are compelled to do so. *Germania F. Ins. Co. v. Frazier, 22 Ill. App. 327; * Ætna L. Ins. Co. v. Deming, 123 Ind. 384, 392; 24 N. East. Rep. 86, 375.

Assured must keep and perform them or the policy is inoperative, but he does not agree to do so. It is not a case of mutual covenants and agreements where the agreement of one side constitutes the consideration for the promise of the other. Lockwood v. Middlesex Mut. Ins. Co., 47 Conn. 553; 11 Ins. L. J. 40. So held under old forms. But see infra, No. 47 et seq.

40.- Contracts of insurance must have effect like all other written contracts. The intention of the parties must govern and control; and when the language used 47.- It seems the rule of strict construcis plain and unambiguous the intention tion as against an insurance company was of the parties to the contract must be founded upon the fact that under pregathered from the language used therein.vious form of policy the contract was * Weidert v. State Ins. Co., 19 Ins. L. J. "unipartite," or one sided. Mosley v. 740; 24 Pac. Rep. 242; 19 Ore. 261. Vermont Mut. Fire Ins. Co., 13 Ins. L. J.

Under the new form the policy is in terms made in consideration of the stipulations therein contained as well as the premium. See section one, supra.

48. The effect of making the stipulations a part of the consideration would seem to be the creation of mutual covenants, where the agreement of one party constitutes the consideration for the promise of the other. Carpenter, J. Lockwood v. Middlesex Mut. Ins. Co., 11 Ins. L. J. 40; 47 Conn. 553.

41.- A policy of insurance, like any 97; 55 Vt. 142; and see Home Ins. Co. v. other contract, is to be read in the light | Gwathmey, 16 Ins. L. J. 338; 82 Va. 923. of the circumstances surrounding it. Philadelphia Tool Co. v. British American Assur. Co., 132 Pa. 236; 25 W. N. C. 370: 47 Phila. Leg. Int. 248; 19 Atl. Rep. 77. 42. Several policies taken out in different companies, without any relation to each other, on the same property, are independent contracts; and a policy in one company cannot be received in evidence to explain or vary what is contained in another. *Westinghouse Electric Co. v. Western Assur. Co., 19 Ins. L. J. 309; 7 So. Rep. 73; 42 La. Ann. 28; and see No. 82. 43. The court has no power to strike 50. Assured bound by acceptance out or separate clear, unambiguous, and of policy. The assent of an assured to a not repugnant provisions, from a policy of provision in the policy is conclusively preinsurance and enforce the remaining pro-sumed from his acceptance of the policy. visions. *Bruton v. Metropolitan Ins. *Allen v. German American Ins. Co., 123

49.- Note on Construction, see 5 L. R. A. 799, 805.

Assumed to Know Conditions

N. Y. 6; 33 N. Y. S. Rep. 216; 19 Ins. L. J. 979; 25 N. East. Rep. 309.

Questions for Jury.

57.— Duty of assured to examine policy and if dissatisfied to promptly reject it; otherwise he is deemed to accept it as issued. American Ins. Co. v. Neiberger, 11 Ins. L. J. 514; 74 Mo. 167; and see *Allen v. German American Ins. Co., 123 N. Y. 6; 19 Ins. L. J. 979.

51.- Where plaintiff entrusted certain cargoes of rails to the Erie railroad to carry to Buffalo, and forward thence to Duluth by water; and defendant, having contracted with the agent of the road at New York to carry them from Buffalo to 58.- Though the insured is presumed Duluth, and to insure them, procured cer- to know at his peril the conditions of his tificates of insurance to be issued and policy, that will not bind him to a provisdeposited with the agent of the road ion that is not true, and one which the at Buffalo, of whom it received the company had no right to insert, e. g., cargo, but had no direct dealing with a by-law providing that "in all cases the the plaintiff - the receipt and reten-person forwarding applications shall be tion of these certificates by the agent deemed the agent of the applicant." Nasof the road, without objection, estopped sauer v. Susquehanna, etc., Ins. Co., 109 the plaintiff from objecting to the form of Pa. 507. the policies or the amount of the insurance. *Scranton Steel Co. v. Ward's Detroit & L. S. Line, 40 Fed. Rep. 866.

52. Where there is no antecedent agreement on the question the proper course of one who discovers that a clause of the policy as written is not acceptable to him is to refuse to accept it, and at once return it for cancellation. *Clem v. German Ins. Co., 29 Mo. App. 666.

53.- As a general rule a person insured is bound by the conditions found in the policy which he has accepted and retained without objection, where there is no application therefor. *McFarland v. St. Paul F. and M. Ins. Co., 49 N. W. Rep. 253; 46 Minn. 519.

59. Assured not bound by conditions in charter of a foreign insurance company without notice. City Fire Ins. Co. v. Carrugi, 41 Ga. 660.

61.- The insured must be held to a knowledge of the conditions of his policy; and the fact that he had never seen it does not help him any more than the fact that he had not read it, where there is no adequate reason shown why he could not have seen it had he so desired, and the company had not kept it from him through 54. Assumed to know conditions. any fault or fraud. Cleaver v. Traders' Ins. Assured bound to take notice of terms of Co., 71 Mich. 414; 16 Ins. L. J. 744; 15 West. policy; his neglect to make himself ac- Rep. 525; 41 Balto. Underwriter, 13; Morriquainted with its provisions cannot en- son v. North America Ins. Co., 69 Tex. large company's liability. Pindar v. Res-353; 5 Am. St. Rep. 63; 6 S. W. Rep. 605. olute Fire Ins. Co., 47 N. Y. 114; Bonne- 62. It is the duty of the insured to ville v. Western Assur. Co., 68 Wis. 298; 32 N. W. Rep. 34. And see Reynolds v. Commerce Fire Ins. Co., 47 N. Y.604. 55.- Ignorance of assured of conditions in policy cannot deprive the company of their benefit. Ervin v. N. Y. Cent. Ins. Co., 3 T. & C. 213 (N. Y.); S. P., Monitor Mut. Ins. Co. v. Buffum, 115 Mass.

examine the application and policy, and he will be presumed to know their contents. *Mensing v. American Ins. Co., 36 Mo. App. 602; *Johnson v. Dakota F. & M. Ins. Co., 45 N. W. Rep. 799; 1 N. D. 167.

63. Questions for jury. Questions as to the meaning of particular words used in a special sense are for the jury. Pitney v. Glens Falls Ins. Co., 65 N. Y. 6.

64. If there is a dispute as to the meaning of certain terms, the question is proper to be submitted to the jury, and upon their finding the proper legal interpretation will then be given to it by the court; otherwise it is the duty of the court to place the proper construction upon all