
    Hunt v. Hudson River Fire Insurance Company.
    A policy of insurance against fire, upon which the action, was brought, contained this clause, “camphene, spirit gas, or other burning fluid, when used as a lights subjects the goods, &c., to an additional premium of 10 cents per $100, and premium for such use must be endorsed in writing upon the policy.” The complaint did not aver that camphene, &c., was not used as a light, or, if used, that the premium was endorsed upon the policy.
    
      Held, that it was not necessary to negative in the complaint a breach of this provision—its observance not being necessary to be proved on the trial as one of the facts constituting the cause of action. If broken, the breach was a matter of defence, which, as such, should have been stated in the answer. Quere, whether the clause ought to be construed as a stipulation against the use of eamphene equivalent to a warranty ?
    (Before Oakley, Ch. J., Emmet and Hoffman, J.J.)
    November 19;
    December 10, 1853.
    It rests wholly in the discretion of the judge who tries the cause, whether he will permit a pleading to be amended upon the trial. The general term will not review his decision upon an exception.
    Appeal by defendants from a judgment at special term, denying a new trial, upon a bill of exceptions.
    The action was upon a policy of insurance against fire, executed and delivered by the defendants to the plaintiff1 upon a stock of goods belonging to him in a store at Racine, in the State of Wisconsin.
    The complaint set forth at large the policy, with the terms and conditions annexed; averred the happening, of a loss by fire within the term insured, and claimed damages by reason thereof to the amount of $1,061.09, for which sum, with interest to the 14th of April, 1852, judgment was demanded.
    The answer admitted the execution and delivery of the policy ; it admitted also that the goods described in the policy, and insured thereby, had been injured and partly destroyed by fire; that the plaintiff had sustained damages thereby; but denied that the proportion of such damages, for which the defendants were liable, amounted to the sum of $1,061.09, or exceeded the sum of $582.19, which last sum, the answer averred, that the defendant had tendered and offered to pay to the plaintiff before the commencement of the action. The answer set up as a further defence, that the amount of the loss for which alone the defendants were liable, had been settled by two successive arbitrations at a less sum even than that which the defendants had offered to pay.
    The reply denied the tender, the submission to arbitrators, and all other allegations of new matter contained in the answer.
    Upon these pleadings the cause was tried before the chief justice and a jury, on the 13th May, 1852; but it is not deemed necessary to state any of the proceedings on the trial, except those to which the exceptions that were taken relate. As soon as the cause had been opened to the jury, the counsel for the defendants moved for judgment in their favor, upon the ground, that the complaint did not set forth facts sufficient to constitute a cause of action. The terms annexed to the policy, as set forth in the complaint, contain this provision, “ camphene, spirit gas, or burning fluid, when used in stores or warehouses as a light, subjects the goods therein to an additional premium of 10 cents per one hundred dollars, and premium for such use must be endorsed in writing on the policy.” The counsel for the defendants insisted that it was a fatal defect in the complaint; that it contained no averment that camphene, spirit gas, or burning fluid, was not used as a light in the store mentioned in the policy, or if used, that premium for such use was endorsed in writing upon the policy. The chief justice denied this motion, and the counsel excepted to the decision.
    When the evidence on the part of the plaintiff was closed, the counsel for the defendants offered to read the following cross-interrogatory addressed to a witness examined on the part of the plaintiff, and also the answer of the witness thereto.
    Fourth cross-interrogatory. What was the size and number of stories of said store? Of what materials were the same built? Was camphene, or any other, or what burning fluid used for the purpose of lighting said store at night ? State the class of articles kept or stored in said store. Answer fully.
    The counsel for the plaintiff objected to the reading in evidence of so much of said answer as is responsive to that part of said cross-interrogatory, which is in the words following, to wit: “Was camphene, or any other, and what burning fluid used for the purpose of lighting said store at night?” on the ground that such part of the interrogatory did not relate to any .issue in the cause, and also that the defendants had by their answer specifically admitted their liability in this action as insurers, and offered to pay the sum of $582.79, and had rested their defence solely on the question of the extent and amount of the plaintiff’s loss.
    Pending the consideration of which objection the counsel for the defendants moved -to amend the answer of the defendants, by striking out all admissions of liability of the defendants to the plaintiff, and inserting an allegation that the plaintiff had used camphene, spirit gas, or burning fluid, as a means of light in said store or warehouse, without the permission of defendants, and contrary to the conditions of said policy of insurance, which motion was denied by the said chief justice, on the ground that the defendants had admitted a partial right of recovery in this action, and had not applied for leave to amend their answer before the trial, by setting up the alleged ground of defence, so as to give the plaintiff an opportunity of meetiúg it by adverse proof, and also because such amendment would not be in furtherance of justice, as it appeared by the evidence that the fire did not originate in the plaintiff’s store but in an adjoining building, and the counsel for the defendants duly excepted.
    The chief justice sustained the objection of the plaintiff’s counsel, and refused to allow the counsel for the defendants to read that part of said cross-interrogatory, and the answer thereto, in evidence, to which the objection referred. The counsel for the defendants duly excepted to the decision.
    The defence was then abandoned, and the jury, without any summing up by the counsel, found a verdict for the plaintiff for $1141.46.
    
      G. W. Stevens, for the defendants,
    now contended that the judgment upon the verdict ought to be reversed and a new trial granted, upon the following grounds.
    I. The terms and conditions of insurance annexed to the policy, being referred to in the body of the instrument, form part of it, and have the same force as warranties as they would have had if contained in the body of the policy. 9Roberts v. The Chenango Mut. Ins. Co., 3 Hill, 501; Jennings v. The Chenango Mut. Ins. Co., 2 Denio.)
    H. The terms of insurance relative to the use of camphene, spirit gas, and burning fluid, amounted to a warranty of a promissory character upon the part of the assured, but although a warranty be promissory, the party insured is bound to a strict performance. (Egan v. The Mut. Ins. Co. of Albamy, 5 Denio, 326; Ellis on Insurance, 28; 1 Phillips on Insurance, 3d ed. 416, 469; Lothian v. Henderson, 3 B. & P. 515.)
    
      III. A declaration on a policy of insurance or other contract, must state a full compliance with all warranties and conditions precedent. And if there be a stipulation in a contract that under certain circumstances the defendant shall not be liable, that stipulation must be stated in the declaration, with an averment that the liability of the defendant did not arise out of any of the excepted matters. ( 2 Phillips on Insurance, 3d ed. 619; Ferguson v. Cappea, 6 Harris & J. 394; Latham v. Rutley, 2 Barn. & Cres. 20; Everett v. Desborough, 5 Bing. 503; Gould’s Pleading, 178; 1 Chitty’s Pleading, 321.)
    IV". The complaint in this cause does not contain an averment of the compliance by the plaintiff with each particular warranty, nor any general averment of a compliance with all the warranties. It is bad in substance, and the motion for judgment on the complaint made at the trial was erroneously denied. (Code of Procedure, sec. 148; Rayner v. Clark, 7 Barb. 581.)
    V. The admissions of a party only bind him to the extent that they have been acted on by the party setting them up by way of estoppel. (Merrill v. Tyler,—In the Court of Appeals, April, 1853.)
    VI. The judge erred in denying the motion of the defendant for leave to amend the answer. The amendment of a pleading is matter of right, the discretion of the court is a judicial discretion, and not an arbitrary one, and must be confined to the terms upon which the amendment shall be allowed.
    VII. The judge erred in excluding the fourth cross-inter rogatory to the witness Runyan. 1. It was strict matter of cross-examination to the fourth and fifth direct interrogatories. 2. An issne as to all the material allegations of the complaint, is raised by the last clause of the answer.
    
      W. Allen Butler, for plaintiff, contra.
    
    I. The motion to dismiss the cómplaint, at the tidal, on the ground that it did not state facts sufficient to constitute a cause of action, was properly denied. The fact that the plaintiff had not used camphene or burning fluid was, in no sense, one of the facts constituting his cause of action, and only such facts are required to be stated. (Code, § 142, subd. 2.)
    H. The evidence with regard to the use of camphene, &c., for light in the insured premises, was properly excluded. 1. There was no issue in the cause to which such evidence applied. The onh' issues arising on the pleading related to the amount and extr it of the plaintiff’s loss. The. answer admitted a liability on the part of the defendants as insurers to the amount of $582.79. The evidence of the use of camphene without permission and contrary to the provisions of the policy was offered in bar of any recovery. But this ground of defence was wholly inconsistent with the admissions of the answer, and cannot be implied from any part of it. 2. Even if the liability of defendants had not been admitted by the answer, the use of camphene, &c., as a means of light in the insured premises, would not affect the plaintiff’s right of recovery; the provision in the special memorandum respecting camphene, &c., not being a prohibition against its use in any such sense as to make its use a forfeiture of the policy, and the fire not having originated in consequence of its use.
    III. The motion to amend the answer at the trial was addressed to the discretion of the court, and its denial was not the subject of exception. (Roth v. Schloss, 6 Barb. 308; Brown v. McCune, 5 Sandf. 224.)
    IY. The judgment appealed from should be affirmed with costs.
   By the Court. Hoffman, J.

The first oojection relates to the form of the pleading. It is, that the complaint does not contain facts sufficient to constitute a cause of action, inasmuch as by the conditions of the policy it is provided that camphene, spirit gas, or burning fluid, when used in stores or warehouses, as a light, subjects the goods therein to an additional’ charge of ten cents per one hundred dollars, and the premium for such use must be endorsed in writing on the policy; and the complaint contains no averment that camphene, spirit gas, or burning fluid, or either of them, were not used as a light in the store or warehouse mentioned in the said policy of insurance, or if used, that the premium for such use was endorsed in writing on such policy.

The defendant moved to dismiss the complaint for this alleged defect, and the motion was denied.

We are of opinion, that there was no error in the denial, whether the case is considered under the old rules of pleading, or under the Code.

The complaint has been framed under the precedent in Chitty’s Pleadings (vol. 2, p. 536). It contains several averments of a negative character, as that the fire did not take place by'means of any invasion, or riot; and Mr. Ellis, in his treatise on fire insurance (Law Library, vol. 4, p. 91), states, that such averments in a declaration are necessary, whether the action is covenant upon a policy under seal, or assumpsit upon one without a seal.

But, in the first place, we consider that such averments contain an anomalous principle in pleading, by introducing allegations which it would be unnecessary to prove. We presume the proffer of evidence, to show that a fire occurred when there was no invasion, would be regarded as frivolous ; we are not inclined to go further than precedents compel us.

In the next place there is a marked distinction between the averments in the precedents, and the averment that camphene was not used, insisted. upon as necessary in the present case. In those instances the negation is of matters which, if they existed, would show, that there was no subsisting contract at all, or not such a contract as the plaintiff claims upon. Thus, if the loss occurred during an invasion, the contract became annulled; if the policy was made after another insurance upon the property, not mentioned in, or endorsed upon it, the insurance was void from the beginning; and so, if another insurance was made previously, or subsequently, with notice, the company was only responsible for a pro rata amount.

In all these cases, the negative allegations are used to make perfect the affirmative proposition of a subsisting contract, within the express conditions of the instrument. They deny the existence of any matter which the instrument itself declares has rendered, or will render it inoperative or qualified.

The clause in question is distinct from all others in the policy, or memorandum, and is of a peculiar nature.

It is not within the enumeration of trades or business, termed in the memorandum of special rates, as hazardous, or extra hazardous. It is not like gunpowder or saltpetre, expressly prohibited. It is as follows:—“ Camphene, spirit gas, or burning fluid, when used in stores and warehouses as a light, subjects the goods therein to an additional charge of ten cents per one hundred dollars, and premium for such use must be endorsed in writing on the policy.” v

We are not at liberty to substitute the word permission for the word premium in this instrument, although it is highly probable the former word was intended. It cannot be doubted that, if such additional premium has, at any time, been accepted by the assurers, the policy would have remained in force, even if it had been omitted to be endorsed (Newcastle Fire Office v. Morran, 3 Dorr. 255).

The case of Meade v. The N. W. Ins. Co., in the Court of Appeals, a statement of which is found in Mr. Selden’s Notes, does not, in the first place, contain an express decision; but, in the next place, it is stated, that the clause required expressly the permission of the assurers for the use of spirit gas.

We are of opinion, that there is nothing in the policy which makes the non-user of camphene such an absolute condition or provision, as that the contract cannot be treated as apparently perfect, or sufficiently stated, without an averment denying its having been used.

But, if the view above taken should be erroneous, we consider, next, that the complaint is fully sustained by the rules of pleading established in the Code. The object of the Legislature, in abolishing previous forms of pleading and substituting a complaint, “ to set out the facts constituting the cause of action in ordinary language,” is, probably, as well attained by pursuing the frame of the stating part of a bill in chancery, as in any other mode (Fay v. Grimsted, 10 Barbour, 328). Until the disuse of special replications led to the employment of what was termed the charging part in a bill, nothing could he more simple or logical than the construction of such a pleading.

It may be laid down as a settled rule that, in such stating part, it would be requisite to allege every affirmative proposition which it would be necessary to prove, in order to establish a right of action and show a ground of relief, and to state nothing more (Willis’s Equity Pleading, 19). If a bill were filed in case of a lost policy (as might at any rate have been formerly done), the making of the policy, and setting out an alleged copy fully, or annexing it—with a statement of the fact and mode of loss, to show that the policy covered it, and of the extent of damage, would be all that would be necessary: a violation of any condition of the policy, however absolute, would be left to the defence.

It is a striking fact, that the forms in the old work called Praxis Almas Curias (vol. 1, page 170), omitting, of course, those parts which perform the office of an examination of the defendant, are excellent guides under our present system.

On both grounds, we consider the complaint to be properly framed (Vide Mann v. Morevoort, 5 Sand. S. C. Rep., p. 565, 566; and Catlin v. Gunter, 1 Duer, 266).

The next objection raised by the bill of exceptions is, that the Chief Justice denied a motion made at the trial, for liberty to strike out the admissions of liability contained in the answer and to insert an averment, that the plaintiff had used camphene, or spirit gas, as a means of light, in the building.

After the decision of this court in Brown v. McCure (5 Sandford, 224), and of the Supreme Court in Ruth v. Schloss (6 Barbour, 308), it cannot be questioned, that such an application, at such a time, is not of absolute right, but addressed to the discretion of the judge. His decision upon such application is not properly appealable. But, if it were so, we should, without hesitation, affirm it. To allow an amendment in the progress of a trial, which annuls a formal admission on the record, and substitutes a defence altogether new, and which the plaintiff had a right to consider could never be set up, would transcend any looseness of proceeding we are yet apprised of (Vide Catlin v. Hansen, 1 Duer, 327, Opinion of Bosworth, J.). We do not mean to say, that if a fraud was first discovered on the eve of, or during a trial, tins course might not be pursued. We leave such a case to he decided when it arises.

The last objection is, that the judge erred, in excluding the answer of the witness Runyan to the fourth cross-interrogatory.

There is no ground for the proposition, that the cross-interrogatory was warranted by the fourth direct interrogatory. That only. required an answer as to the facts, whether a fire did occur at the time alleged ; whether the goods were destroyed, or damaged; how the fire happened; and whether by means of invasion or not.

The cross-interrogatory calls for an answer to ■ the question, whether camphene or burning fluid was used for the purpose of lighting the store at night. The matters of inquiry are wholly distinct, and the one question has not let in the other. The judge rejected only the answer to this clause.

The point is then reduced to this—Whether the statement oí a witness upon a commission, in answer to an unwarranted question, irrelevant to the whole case made on the pleadings, and inconsistent with the admission on the record of the party obtaining the response, is admissible. We regard the decision rejecting it as clearly correct.

The conclusion is, that the appeal must he dismissed, and the judgment he affirmed, with costs.  