Hill v. Millville Insurance Co.

settling some losses and claims for the company. By an understanding between them he gave what are called "dummy notes" for some insurances obtained through him; that is, he gave, instead of the premium notes of the assured, notes signed by him for them, for which genuine notes were to be subsequently substituted. He represented himself to be the company's agent. He so signed the special clauses inserted by him in policies. He receipted for premiums as its agent. He initiated risks for it in that way. In two instances he endorsed and collected the money upon bank checks for premiums given to him by P. I. Nevius & Son, and made payable to him as agent of the company. His monthly accounts current with the company were on printed blanks furnished by it to him for the purpose. They were headed, "Dan'l D. Baker, agent at New York, in account with Millville Mutual Marine-and Fire Insurance Company, for the month ending" &c. The blanks contained the following printed memorandum or notice :

"This statement to be forwarded on the last business day of each month, and in all cases accompanied with canceled policies, vouchers for charges and remittances in full of balance due."

In 1877, he addressed a letter to Messrs. Bentley, Gildersleeve & Co., informing them that the schooner Early Bird was in the port of New York, and appeared to be neglected by the assured, and that the company would not hold itself liable for any damage or expense accruing to her or her freight in consequence of such neglect &c. This letter he signed "Millville Mutual M. & F. Ins. Co., by Dan'l D. Baker, agt.," and he appears to have sent a copy of the letter to the company at once. As before stated, he had authority to initial open policies, whether for insurance or re-insurance. He had initialed such a policy for insurance for P. I. Nevius & Son. Mr. Nevius says they took out such a policy from the company, and Baker represented himself as its agent, and gave them a book in which the risks were to be entered.

In reference to such policies, the secretary says an open policy is a policy made by the company and attached to the front part

Hill v. Millville Insurance Co.

of what is called an open policy-book, in which a given amount of insurance, that is, insurance up to a certain amount, is allowed the parties holding the book. All that is necessary to make that policy binding on any particular vessel is to enter on that policybook, at the time the risk commences, the name of the vessel, with the valuation and voyage, and the amount of insurance the insured wants the company to cover, and he says that is binding on the company, according to the agreement; that a correspondent authorized to do so, would, not only with a view to his own commissions, but also to the protection of the company, examine the book from day to day to see what amount the assured were putting upon it, and would initial the entries already made. By initialing is meant signing the initials of the agent's name, with the addition "agent" or "agt.," denoting his representative character. It is quite clear that P. I. Nevius & Son had reason to regard Baker as the agent of the company. But still further, Baker swears that there was a verbal understanding between him and the company that he was to act as its agent so long as it was prohibited from having an agency in the state of New York. He further says that he had seven or eight books for open policies, before the policy in question was issued. He was the agent of the company not only to receive applications for insurance and premiums, but for many other important purposes, and was, in fact, its general agent in the city of New York. Being the company's agent, his mistake in the application in question was the mistake of the company as much as it would have been if the application had been made in the company's office and taken down by its secretary, and the blunder had been made by the latter. The complainant, by his agents, applied to the company to renew his policy, and the company, by its own mistake alone, issued the new policy in the name of his agents. It did not renew, but issued a new policy. In 2 Am. Lead. Cas. (5th ed.) 919, note, it is said that whatever the rule may be, under ordinary circumstances, it would seem clear that when the duty of preparing the policy is, as generally happens, assumed by the assurers, they cannot take advantage of the failure of the instrument to express any fact or circumstance that has been duly

Hill v. Millville Insurance Co.

communicated by the insured and omitted, through negligence or design, by their officers or agents, and that the principle is the same where the error or misdescription occurs in an application or survey, which, though nominally proceeding from the insured, is in fact prepared or dictated by an agent of the company. The cases cited as authority fully sustain the authors in this conclusion. Among them are, notably, Plumb v. Cataraugus Ins. Co., 18 N. Y. 392; Rowley v. Empire Ins. Co., 36 N. Y. 550; Howard Ins. Co. v. Bruner, 23 Pa. St. 50; Ayres v. Hartford Ins. Co., 17 Iowa 176, and Malleable Iron Works v. Phoenix Ins. Co., 25 Conn. 465, to which may be added Woodbury Association v. Charter Oak Ins. Co., 31 Conn. 517; Columbia Ins. Co. v. Cooper, 50 Pa. St. 331, and Parsons v. Bignold, 13 Sim. 518. See, also, May on Ins. §§ 131, 144.

In the case in hand there was no fraud. P. I. Nevius & Son did not intend to take out the policy in their own name, but in the name of the complainant, and they supposed they had done so. They neither represented that they were owners nor asked for a policy in their name. That the policy was issued in their name and not in that of the complainant was due to mistake, not theirs, but the company's a mistake of which they knew nothing until after the loss had occurred and the proofs had been made. Nor, it may be observed, was there anything in the policy, had they read it, to put them upon any inquiry as to the contents of the application. It makes no reference to the application. The fact that they did not examine it and discover the mistake, cannot affect the complainant's right to relief in this suit. Manifestly, justice requires that the company shall not be permitted to take advantage of its own mistake. The application to renew did not warrant it in issuing the policy to P. I. Nevius & Son. In Oliver v. Mut. Marine Ins. Co., 2 Curt. C. C. 277, McKay, an insurance broker, applied for insurance on two ships and their freight, the policy, according to his written direction on the subject, to be for him, and to be made out on account of A. MeLimont, and payable to the latter or his order. The policy was made out accordingly. There was a loss. McLimont was himself only an insurance agent, to whom the

Crammer v. Atlantic City Gas and Water Co.

complainant's agent had, through still another person, applied to get the insurance. The suit was brought to reform the policy by inserting after McLimont's name the word "agent" or the words "for whom it may concern." The rectification was decreed. The court says that when a complete contract for a policy is made by a known agent, and nothing is said respecting any declaration of interest, the contract is to insure the property of the principal, and in order that this contract may take effect, power is impliedly reserved to the agent specially to declare the interest upon which the insurance is to attach, and to have such declaration inserted in the policy when drawn, or to have the. policy drawn so as to assure him, as agent, leaving the declaration of interest to be made. In that case the company supposed McLimont was the owner. It was led to believe so by the direction given by McKay to insure on account of MeLimont. The company knew McKay was merely an agent, and the erroneous direction arose either from mistake or fraud. The court held it was the former, and ordered that the policy be corrected. See, also, Phoenix Ins. Co. v. Hoffheimer, 46 Miss. 645. But in the case under consideration there was no misrepresentation nor any mistake on the part of the complainant or his agents. The mistake was the consequence of a blunder on the part of the company's agent. There will be a decree for the reformation of the policy by the substitution of the complainant's name as assured, instead of that of P. I. Nevius & Son.

JAMES V. CRAMMER

v.

THE ATLANTIC CITY GAS AND WATER COMPANY.

Complainant filed a bill to restrain defendant from continuing a nuisance of nauseous and noisome odors from its gas works, causing injury and discomfort to him and his family, dwelling in his house opposite the defendant s works. The defendant answered, stating the origin of the company, and its Crammer v. Atlantic City Gas and Water Co.

acts under its corporate powers, its acquisition of the land whereon its works are erected, the natural condition and the improvement of that land, the former condition of complainant's property, the great cost of constructing its works, and the irreparable injury that would result from an injunction preventing its manufacturing gas.-Held, on motion, that these averments were not responsive, but impertinent and irrelevant, and must be stricken out. The formal clauses required by the two hundred and fourteenth rule to be omitted from answers, having been inserted by the defendant, were also stricken out.

Bill for relief. On motion to strike out parts of answer.

Mr. J. J. Crandall, for the motion.

Messrs. Slape & Stephany, contra.

THE CHANCELLOR.

The bill is filed by James V. Crammer against the Atlantic City Gas and Water Company, to restrain it from continuing a nuisance of nauseous and noisome odors from its gas works, causing injury and discomfort to him and his family, dwelling in his house opposite to those works. The answer, amongst other things, sets forth the origin of the company and its powers, its action under those powers, its acquisition of the land on which its works are situated, the natural condition of that land, its improvement by the company, the then condition of the property now occupied by the complainant, the existence of a merely temporary nuisance from refuse matter (which it says is now abated), created by the company shortly before the bill was filed, and the fact that the bill was filed while the company was engaged in abating that nuisance. It also states that the company's works have been constructed at a great cost, and that to restrain it from manufacturing gas there would inflict great injury upon it. The complainant moves, on notice, to strike out all those statements, on the ground that they are not responsive, and are impertinent and irrelevant. The matters objected to are none of them, except the statement in regard to the existence of the temporary nuisance, and the abatement thereof, responsive to the allegations or charges of the bill, and none of them, with the exception just