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U.S. Supreme Court

Carpenter v. Providence Washington Ins. Co., 45 U.S. 4 How. 185 185 (1846)

Carpenter v. Providence Washington Ins. Co.

5 U.S. (4 How.) 185


A policy of insurance contained a stipulation that if the insured then had or thereafter should have any other insurance upon the same property, notice thereof should be given to the company and the same endorsed upon the policy, or otherwise acknowledged by the company in writing, in default of which the policy should cease.

A bill was filed in equity by the insured alleging that notice was given to the insurance company and praying that the company might be compelled to endorse the notice upon the policy, or otherwise acknowledge the same in writing.

When the answer of the company, sworn to by the then president, denies the reception of the notice to the best of his knowledge and belief, the question becomes one of fact and of law -- of fact whether the evidence offered by the complainant is sufficient to sustain the allegation, and of law whether, if so, this Court can compel the company to acknowledge it.

The answer being responsive to the bill and denying the allegation under oath, the general rule is that the allegation must be proved not only by the testimony of one witness, but by some additional evidence.

Several qualifications and limitations of this rule examined.

The circumstances of this case are such that the general rule applies.

Two witnesses are produced by the complainant to prove the notice, but neither of them swears positively to it, and the circumstances of the case do not strengthen their testimony.

The rues by which parties are sometimes allowed to introduce parol evidence with reference to a written contract do not apply to this case, where the parol proof is offered by the complainant, seeking to show a fact which, if true, would establish a breach of duty to the defendants, happening after the original contract was made.

The question of law which would arise if the notice were sufficiently proved by the complainant need not be decided in this case. chanrobles.com-red

Page 45 U. S. 186

The bill was filed by Carpenter against the insurance company, and referred to an action at law which he brought against said company in 1839, and which was brought by writ of error to the Supreme Court of the United States. It is reported in 41 U. S. 16 Pet. 495. The opinion of the Court sets forth the facts in the case, and they need not be repeated.

The present bill averred that the Providence Washington Insurance Company did receive notice of the existence of an insurance made at the office of the American Insurance Company, which said notice was given under the terms of the policy, and that it was the duty of said Providence Washington Insurance Company to have endorsed said notice upon said policy at their office or otherwise acknowledged the same in writing, by reason of which neglect the complainant lost his right at common law to claim the amount of the insurance, viz., fifteen thousand dollars. It then prayed for a decree to compel the said company to endorse said notice on said policy, or otherwise acknowledge the same in writing, according to the terms of their policy, as they long since ought to have done, and further to compel the said company to pay the said sum of fifteen thousand dollars, with interest, &c.

By referring to the record in the former suit, it will be seen that Carpenter and his assignors obtained policies of insurance from two companies, as follows:

Providence Wash. Ins. Co.

1835. September 27.

1836. September 20.

1837. September 27.

1838. September 27.

American Insurance Co.

1836. December 12.

1837. December 14.

1838. December 11.

Prior to the policy of December 12, 1836, the then owner of the property insured made an erroneous representation of the value of the property proposed to be insured, which vitiated the policy, and a suit brought upon it was abandoned.

The policy of September 27, 1838, upon which the suit at law and the present proceeding in chancery were founded, contained, amongst other provisions, the following:

"And if the said insured, or their assigns, shall hereafter make any other insurance on the same property, and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same endorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cases and be of no further effect."

"And provided further, that in case the insured shall have already any other insurance against loss by fire on the property hereby insured, not notified to this corporation, nor mentioned in nor endorsed upon this policy, then this insurance shall be void and of no effect. "

Page 45 U. S. 187

Annexed to the policy were the proposals and conditions on which the policy was asserted to be made, one of which was as follows.

"V. Notice of all previous insurances upon property insured by this company shall be given to them, and endorsed on this policy, or otherwise acknowledged by the company in writing, at or before the time of their making insurance thereon; otherwise the policy made by this company shall be of no effect. And in case of subsequent insurances on property insured by this company, notice thereof must also, with all reasonable diligence, be given to them, to the end that such subsequent insurance may be endorsed on the policy made by this company, or otherwise acknowledged in writing; in default whereof, such policy shall thenceforth cease and be of no effect. And in case of loss, this company shall be liable for such ratable proportion of loss or damage happening to the subject insured, as the amount insured by this company shall bear to the whole amount insured thereon, without reference to the dates of the different policies."

In the suit at law, the court decided:

1. That the circumstance of the early policies being held by mortgagees did not, of itself, dispense with the necessity of a notice by Carpenter.

2. That the misrepresentation to the American Insurance Company did not, of itself, make the policy absolutely void, so as to dispense with the necessity of notice.

3. That, at law, whatever might be the case in equity, mere parol notice of the insurance made in the American Insurance Company was not of itself sufficient to comply with the requirements of the policy declared on, but that it was necessary, in case of any such prior policy, that the same should not only be notified to the company, but should be mentioned in or endorsed upon the policy; otherwise the insurance was to be void and of no effect.

Under this decision, the plaintiff, Carpenter, having lost his suit, filed a bill on the equity side of the court, averring that in December, 1836, and December, 1837, and at divers other times, the Providence Washington Insurance Company had notice from Wheeler & Co. of the insurance at the office of the American Insurance Company, and that said notices were given for the purpose of having the same endorsed on the policy at the office of the Providence Washington Insurance Company, or otherwise acknowledged by them in writing. The bill further averred that it was the duty of said insurance company to have endorsed said notice upon said policy at their office, or to have otherwise acknowledged the same in writing. The prayer of the bill is recited in the commencement of this statement.

The defendants filed an answer and an amended answer. In the amended answer, they deny that said policies of insurance, or chanrobles.com-red

Page 45 U. S. 188

either of them, executed by the said American Insurance Company, and bearing date 12 December, A.D. 1836, 14 December, A.D. 1837, and 11 December, A.D. 1838, were notified to these defendants in any form, or that these defendants had any knowledge or suspicion of the existence of said policies, or either of them, until long after the execution, by these defendants, of the policy of 27 September, A.D. 1838.

They then aver that they executed said policy of 27 September, A.D. 1838, in entire ignorance of all said policies at the said American Insurance Office, and in the full belief that the said policy by these defendants was all the insurance which the said plaintiff had on the property insured.

They object to the admission of any evidence that said policies by the said American Insurance Company, of 12 December, A.D. 1836, and 14 December, A.D. 1837, were notified to these defendants, except the mention of said policies in the policy executed by these defendants, or the endorsement of the same thereon, and also object to the admission of any evidence that said policy executed by the said American Insurance Company on 11 December, A.D. 1838, was notified to these defendants, except the endorsement of said notice on said policy of 27 September, A.D. 1838, or an acknowledgment by these defendants in writing of such policy.

The answer then sets out specifically the misrepresentation under which the American Insurance Company had executed the policies of 1836, 1837, and 1838, and claims the benefit of it, alleging that if notice had been given to the defendants of these policies, their existence, coupled with the representations which had been made, would have led the defendants to believe that both policies would have left a sufficient proportion of the property at the risk of the owner, and consequently they would have had no objection to executing the policy of 27 September, 1838, or to endorsing a notice of the policy of December 11, 1838, upon their policy.

The answer then pleads the former verdict and judgment in bar.

Amongst other evidence taken in the cause were the depositions of Samuel G. Wheeler, a former owner of half the mill, Allen O. Peck secretary of the American Insurance Company, and Warren S. Greene the secretary of the Providence Washington Insurance Company from October, 1836, to that time.

Wheeler deposed that he caused insurance to be effected upon the property in December, 1836, at the American Office in Providence; that there was a preexisting policy in the office of the Providence Washington Insurance Company; that he gave notice, by letter, to the late president of the latter company, Mr. Jackson, of the insurance effected in the former about the time when it chanrobles.com-red

Page 45 U. S. 189

was done, viz., in December, 1836; that he had no copy of the letter; that the recollection was distinctly on his mind that he did write such a letter; that he was an agent for the Providence Washington Office, and well acquainted with the terms and conditions of a policy of insurance, and of the necessity of giving notice.

On his cross-examination, he stated the contents of the letter to be a notice of the insurance of $6,000 at the American Office, with a request that the necessary entry should be made on the books of the company; that he could find no letter from Mr. Jackson, in reply; that he had not any distinct recollection of having received a reply; that he had no business of his own which required a clerk, and therefore employed none for himself; that his impression was that he put the letter into the post office, but could not say positively, and in reply to an interrogatory why he did not take a copy of the letter to Mr. Jackson, answered as follows.

"Answer. The first reason is, which may have operated on my mind, that I did not at that time know that it was necessary to get from the office an acknowledgment in writing that notice had been received. I supposed it only necessary to make the communication in the usual way. And the other was that after I removed to New Jersey, my correspondence was so limited, that I did not always take copies; sometimes they were copied by members of my family, sometimes I copied minutes only, and sometimes didn't copy at all."

Allen O. Peck being sworn, and shown the letter from Samuel G. Wheeler to him, dated December 13, 1837, and a copy of his reply, dated December 14, 1837 (above referred to), testified, that it was the common practice to carry letters of this nature to the Washington Office; that he recollected distinctly having an interview with Mr. Jackson, president of the Washington Insurance Company, upon the subject, at the Washington Office, and that he had no doubt that he did carry the letter from Samuel G. Wheeler, of December 13, 1837, to the Washington Office, and show the same to Mr. Jackson; but he had no recollection of so carrying said letter or handing it to Mr. Jackson; that his impression that he did carry said letter and present it to Mr. Jackson, is derived from the fact that it was his custom to communicate such information in that way; that whatever communication was made, was made to Mr. Jackson; that the representation referred to in the first letter of Samuel G. Wheeler to the American Office, as being in the Washington Office, was obtained by him from the Washington Office for examination; that whatever communications were made by him were made to Mr. Jackson, he being the active organ of the company; that he had no doubt he did show the letter aforesaid to Mr. Jackson, but that he had no recollection of having chanrobles.com-red

Page 45 U. S. 190

done so, and that the statement he now makes that he did so is founded on the fact that such was his practice in similar cases; that Mr. Jackson died in April, 1838.

Warren S. Greene deposed that there was no record, memorandum, or notice on the books, records, or papers of the Providence Washington Insurance Company of insurance on the Glencoe Mill by the American Insurance Company; that Mr. Jackson, late president of the office, died on 18 April, 1838, having been confined to his house by sickness between two and three weeks; that he was not confined so as to keep him away from his business till his last sickness.

The complainant took the depositions of Joseph Strong, Richard A. Reading, Edward W. Laight, and Lewis Phillips of the City of New York, and Joseph Balch and Charles W. Cartwright, of Boston, as to the usage and practice of insurance companies, who testified that it was not the practice of their or other offices, after notice of a policy upon the same property at another office, to require notice of the renewal of such policy at such other office. To cross-interrogatories these deponents replied that notice should be given in the manner prescribed in the policy, and that where such notices were verbal they were not sufficient, unless some memorandum of them was made on the books of the company; that the practice of not requiring notice of the renewal of other insurance was confined to cases where the original notice was given in the mode prescribed in the policy.

At November term, 1843, the cause came on for hearing upon bill, answer, and the testimony, when the court decreed that the bill should be dismissed, with costs.

From this decree, an appeal brought the case up to this Court. chanrobles.com-red

Page 45 U. S. 216


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