
    INSURANCE — INCUMBRANCE.
    [Pickaway (4th) Circuit Court,
    1902.]
    Sibley, Cherrington and Jones, JJ.
    Lewis C. Hammel v. Insurance Company of Pennsylvania.
    1. Exhibit not Property Identified.
    Where a bill of exceptions refers to a policy of insurance as “ Exhibit B,” a policy of insurance marked “ Exhibit A ” and not attached to the bill of exceptions, is not properly identified and cannot he considered by the reviewing court. .
    2. Faiture to Attach Exhibit Does not Require Bitt Stricken from Fites.
    The fact that an exhibit referred to in a bill of exceptions is not attached thereto, nor identified in such a way as to make the exhibit available in the ' reviewing court, does not require the bill to be stricken from the files where questions other than those involving the exhibit are properly presented for review.
    
      S. Paroe Evidence Incompetent to Defeat Condition in Poeicy.
    A clause in a policy of fire insurance, covering personal property, to the effect, that if the subject of the insurance be or become incumbéred by chattel mortgage unless otherwise provided by agreement endorsed thereon, the policy shall be void, admits of no construction, and evidence that assured informed the agent, when the insurance was obtained, that the property was so incumbered, is inadmissible, as varying the terms of the original contract and such facts involve no question of waiver.
    Heard on Error.
    Abernethy & Folsom, attorneys for.plaintiff in error, cited:
    A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party thereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. Section 3644 Rev. Stat.; Insurance Co. v. Leslie, 47 Ohio St. 409, 415 [24 N. E. Rep. 1072]; Insurance Company v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474].
    Representations. Hartford Protection Insurance Co. v. Harmer, 2 Ohio St. 452 [59 Am. Dec. 684]; Byers v. Insurance Co., 35 Ohio St. 606 [35 Am. Rep. 623].
    Legal notice to insurance agent is notice to principal. Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647; Metropolitan Bk. v. Taylor, 53 Mo. 444, 456; Woodbury Sav. Bank v. Insurance Co., 31 Conn. 517; Bliss Life Ins., 105; Story Agency, par. 53 b, etc.; Insurance Co. v. Williams, 39 Ohio St. 584, 588, 599 [48 Am. Rep. 474],
    Forfeiture where company’s consent to incumbrance is not endorsed on policy. Webster v. Insurance Co., 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719; 53 Am. St. Rep. 658]; Dwelling House Ins. Co. v. Webster, 4 Circ. Dec. 704 (7 R. 511); Imperial Ins. Co. v. Wolf, 11 Circ. Dec. 815 (21R. 202); Ohio Farmers Ins. Co. v. Burget, 65 Ohio St. 119 [61 N. E. Rep. 712]; United Firemen’s Ins. Có. v. Kukral, 4 Circ. Dec. 633 (7 R. 356); Ohio Farmers Ins. Co. v. Burget, 9 Circ. Dec. 369 (17 R. 619); Viele v. Insurance Co., 26 Iowa 9 [96 Am. Dec. 83]; 2 Jones Evidence, Sec. 442; Insurance Co. v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474].
    No rule is better settled than that conditions in policies, that shall become void upon certain contingencies, should receive a strict construction, and, when ambiguous, be construed most strongly against the insurer, for the reason, that they are prepared by, and inserted for the benefit of the insurer. .Moody v. Insurance Co., 52 Ohio St. 12, 22 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699]; May Insurance, Sec. 174; Union Insurance Co. v. McGookey, 33 Ohio St. 555, 556; Blackwell v. Insurance Co., 48 Ohio St. 533, 540 [29 N. E. Rep. 278 ; 14 L. R. A. 431; 29 Am. St. Rep. 579]; West v. Insurance Co., 27 Ohio St. 1,10; Queen Ins. Co. v. Leonard, 6 Circ. Dec. 49 (9 R. 46).
    
      No formalities in the writing will stand in the way of proof that a contract is forbidden by statute or common law. In all such cases the court will go behind the apparently valid written instrument and deal with the transaction on its merits; and it is immaterial whether it is immoral, or in some other way contravenes the general policy of the law. 2 Jones Evidence, Sec. 441; Crawford v. Wick, 18 Ohio St. 190, 208 [98 Am. Dec. 108]; Chamberlain v. Insurance Co., 55 N. H. 249; Insurance Co. v. Eeslie, 47 Ohio St. 409, 420 [24 N. E. Rep. 1072].
    The assent of the plaintiff to this condition must be averred and proved by the defendant. Gaines v. Transportation Co., 28 Ohio St. 418; U. S. Express Co. v. Blackman, 28 Ohio St. 144.
    And such assent will not be implied or presumed from facts and circumstances which do not clearly show an assent to such condition in the contract on which the action is founded. Pittsburgh, C. & St. E- Ry. Co. v. Barrett, 36 Ohio St. 448.
    It is not always necessary to reform a policy in equity before an action at law can be maintained. Walrath v. Insurance Co., 9 Circ. Dec. 233 (16 R. 413); Ohio Farmers Ins. Co. v. Britton, 31 Ohio St. 488; West v. Insurance Co., 27 Ohio St. 1,9.
    J. W. Mooney and G. E. Bibbie, attorneys for defendant in error, cited:
    Provision of insurance policy providing that the policy shall be void, if the property is, or shall become, encumbered by mortgage, is valid. Webster v. Insurance Co., 53 Ohio Sf. 558 [42 N. E. Rep. 546; 30 E. R. A. 719 ; 53 Am. St. Rep. 658] ; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385).
    Said provision of the policy is not within the provision of Sec. 3643 Rev. Stat.; Webster v. Insurance Co., 53 Ohio St. 558 [42 N. E- Rep. 546; 30 E. R. A. 719 ; 53 Am. St. Rep. 658].
    Parol statements made prior to or after the issuiug of an insurance policy are not competent to vary or change the contract, or to destroy any of its provisions. Ostrander Insurance, Sec. 24; Ostrander Insurance 384, Sec. 138 ; Kehm v. Insurance Co., 12 Dec. 227 ; Thompson v. Insurance Co., 104 U. S. 252, 259; Insurance Co. v. Eggleston, 96 U. S. 572 ; Insurance Eaw Journal, Fet>. 1892, p. 97; McMaster v. Insurance Co., 99 Fed. Rep. 856; Union National Bank v. Insurance Co., 71 Fed. Rep. 473; United Fireman’s Ins. Co. v. Thomas, 82 Fed. Rep. 406; Fellows v. Madison, 13 Re. 79 (2 Disn. 128); Graham v. Insurance Co., 13 Re. 157 (2 Disn. 252); Metropolitan Eife Ins. Co. v. Wood, 1 O. S. C. D. 346 (33 Bull. 346).
    The insured is conclusively bound by the terms of the policy, whether he has read it or not, and is conclusively presumed to know the contents thereof. Union Central Life Ins. Co. v. .Hook, 62 Ohio St. 256, 263 [56 N. E. Rep. 906j; Monitor Mut. Fire Ins. Co. v. Buffum, 115 Mass. 343; Allen v. Insurance Co., 25 N. E. Rep. 309 [123 N. Y. 6]; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385); Hankins v. Insurance Co., 35 N. W. Rep. 34 [70 Wis.l, 5] ; Ostrander Insurance, 99n.
    It is the duty of the insured to disclose all mortgages and condition of title. The insurer is not required to ask concerning the existence of mortgages. Ostrander Ins., Sec. 80; Ostrander Ins., Sec. 110 ; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385) ; Smith v. Insurance Co., 19 Ohio St. 287; Union Central Life Ins. Co v. Hook, 62 Ohio St. 256, 264 [56 N. E. Rep. 906].
    The policy sued on contains a further provision that none of the terms or conditions thereof shall be waived or changed except by agreement endorsed on the policy. The parties made this provision a part of their contract, and the court will enforce it. Union Central Life Ins Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906].
   JONES, J.

(Orally.)

The petition in the court below was upon a policy of insurance issued by the defendant company to L. C. Hammel & Co., upon certain chattels owned by the defendant, L. C. Hammel. The petition, after setting forth the description of the chattels, avers, that at the time of the issuing of the policy in the name of L. C. Hammel & Co., there was a chattel mortgage on the goods and chattels described in the policy, but that the defendant had notice and knowledge of the fact of the existence of that chattel mortgage ; it avers the loss and proof of loss and asks judgment for the plaintiff.

The third defense alleges, that said policy of insurance issued to said L- C. Hammel & Company, contained a provision that said policy, unless otherwise provided by agreement indorsed thereon, or added thereto, should be void if the subject of insurance be personal property and be or become incumbered by chattel mortgage, and the defendant then alleges that, prior to and at the time of the issuing , of said policy of insurance to said L. C. Hammel & Company, by this defendant, said property, goods and chattels insured by said policy of insurance, were covered by a chattel mortgage in the sum of $911.50;, that there was no agreement indorsed upon said policy or added thereto, con. senting to or permitting the lien of said chattel mortgage upon said property so insured by this defendant. Defendant further alleges that at the time it issued said policy of insurancé it had no knowledge or notice of the existence of said chattel mortgage.

To obviate the effect of.-that defense, the plaintiff filed a reply wherein he denies the allegation in said answer that at the time said policy of insurance was issued, said defendant had no knowledge or notice of the existence of said chattel mortgage, and he denies the allegation that the defendant has in no manner waived said condition and provision contained in said policy of insurance; and sets up the fact that the defendant company’s agent had notice of the incumbrance upon the chattel property by way of mortgage, and that he, the plaintiff, had no knowledge of any provision in said policy of the character, manner and description set forth in said third defense at the time said policy was issued and delivered to him, and that said agent did not advise or inform him of said provisions, nor that it was necessary that any endorsement should be made upon said policy or added thereto, consenting to or permitting the existence of said chattel mortgage upon said property.

The plaintiff offered his evidence, and at the conclusion of that evidence the defendant moved the court to direct a verdict in its behalf; this the court did, and the verdict was returned by the jury for the defendant. A motion for a new trial was filed; that motion was overruled and a petition in error was filed in this court.

A motion was made by the defendant in error to strike this bill of exceptions from the files. That motion will be overruled, but in so far as the bill of exceptions does not contain a copy of the insurance policy pleaded in this case, we will disregard the policy itself. In other words, the court holds that we are not permitted to consider the alleged copy of the policy in this case as being in evidence before this court (although it was before the court of common pleas), for this reason: the bill of exceptions refers to a policy of insurance as having been offered in evidence, but the policy is not in the bill of exceptions; it refers to a policy marked exhibit ‘‘ B,” and the alleged policy is marked exhibit “ A,” and is not in any way attached to the bill of exceptions, offering us no particular way of identifying this policy as the policy offered in evidence ; so that in passing upon this case we will pass simply upon the effect of the evidence, as to whether or not it has a tendency to prove a case for the plaintiff below.

While there are a number of questions and answers that are objected to by the defendant below, a large number of which were properly objected to and properly excluded by the court, the main contention arises as to the action of the court in ruling upon questions and answers found in the bill, relating to the fact whether or not the defendant company, through its agent, had notice of the fact that there was an incumbrance by way of a chattel mortgage upon the property described in the policy of insurance.

It seems .from the evidence that one Harry Van Hyde was the agent of the defendant company, and the' agent of other insurance companies as well; that some time in 1898 (the plaintiff offered evidence to prove, which was rejected by the court), this agent was told at that time, when attempting to negotiate insurance in another company, for which he was agent, that there was an incumbrance upon this chattel property; and later, when this agent, Van Hyde, did negotiate insurance for plaintiff in the defendant company, testimony was offered to show that, at that time, the plaintiff told the agent that there was a lien by way of a chattel mortgage upon this property. All of this evidence was excluded by the court upon the theory, no doubt, that it was incompetent to introduce any evidence which would in any way tend to render nugatory the terms of the insurance policy; and, without reading the various questions and answers touching this matter, that is the bone of contention in this case, whether or not this particular evidence was competent.

We have come to the conclusion that the evidence was incompetent. The evidence, if introduced and allowed to go to the jury by the court below, would have had the effect, in our opinion, of reading into the policy a provision that was in direct- opposition to that clause found in the policy. Here was a policy of insurance which provided that if there was any incumbrance of this character upon the property, that the policy, unless otherwise provided by agreement indorsed thereon or added thereto, should be void. The effect of the evidence, if allowed to be introduced, would have been practically to read that provision oat of the policy.

It is true that there are a large number of adjudicated cases wherein the agents of insurance companies are allowed to waive certain piovisions, rendering the policies void, but that does not come within the purview of this case. It is not a question of the waiver of a contract which has been executed; it is a question as to the provisions of a contract that was made at that time. If it be permitted to introduce parol evidence to-wipe out of the insurance policy this particular provision, it would be competent to wipe out others under the same rule. We do not think that the question of waiver affects this case, for waiver makes practically a new contract which is always permitted. We think that Smith v. Insurance Co., 19 Ohio St. 287, 290, is practically decisive of this case. The opinion of Judge Welch, who was always concise, is brief, and I will read a few lines of it. Judge Welch said: “ We see no error in the rulings of the court below. The charter of the company is expressly made obligatory upon all its members. It expressly declares that policies issued upon incumbered property, without a written application containing a statement of the incumbrance, shall be void. This provision admits of no construction, and no attempt is made to avoid its effect in the present case by proof of fraud or mistake. It is the law of the parties, adopted by themselves, and becomes part of their contract. By it they have declared and agreed that this form of written notice shall be essential to the validity of the policy, and that verbal notice cannot be substituted for it.”

So that we think this question has been practically decided by the Supreme Court as early as the case of Smith v. Insurance Co., supra, and for these reasons we affirm the judgment of the court below.  