BERGER V. PACIFIC MUT. LU'E INS. CO.
tract of suretyship is not that the obligee will see that the principal performs its condition, but it is that the surety will see that he performs it. Nelson v. Bank, 32 U. S. App. 554, 571, 16 O. O. A. 425, 435, and 69 Fed. 798. If the principal fails, and loss ensues, the laches or negligence of. the obligee constitutes no defense for the surety; because by his contract he takes upon himself the primary duty of watchfulness and care. If the deputy in this case was late in the presentation of his accounts, and lax in the discharge of hi. duties, and if care and diligence would have discovered the beginning of his misappropriations and would have prevented his subsequent delinquencies, the burden was on those who guarantied Ws acts to exercise that care, to discover those defalcations, and to demand his removal. If they failed to be careful, if they failed to discover the misappropriations, and to demand the removal of their principal until after loss had resulted from his defalcations, their contract was that they would pay that loss. Neither the negligence nor failure of an obligee in a bond in the discharge of some duty to a third party, nor his negligence or laches in enforcing a compliance with its condition, will release the sureties from their obligation. Nothing less than the breach of a covenant wbich the obligee bas made, or connivance at the principal's breach of the condition of the bond, or knowledge of such breach, and a continuance of his employment without communicating the fact to his sureties, or such a willful shutting of the eyes to the evidences of the breach as warrants the inference of connivance, will have that effect. "Mactaggart v. Watson, 3 Clark & F. 533; U. S. v. Kirkpatrick, 9 Wheat. 720, 735; Tapley v. Martin, 116 Mass. 275; Board v. Otis. 62 N. Y. 88, 92; U. S. v. Witten, 143 U. S. 76, 79, 12 Sup. Ct. 372; Water 00. v. Parker (Cal.) 35 Pac. 1048, 1051; Bostwick v. Van Voorhis, 91 N. Y. 353, 361; Pacific Fire Ins. Co. of New York v. Pacific Surety 00. of California (Cal.) 28 Pac. 842; Bank v. Brownell, 9 R. I. 168. The judgment below is affirmed.
BERGER et aI. v. PACIFIC MDT. LIFE INS. CO. OF CALIFORNIA.
(Circuit Court, W. D. Missouri, W. D.
June 13, 1898.)
ACCIDENT INSURANCE-SHOOTING BY INSANE PERSON.
An exception in an accident polley of "intentional injuries lntllcted by the insured or any other person" does not include death from being shot by an insane person without capacity to form an intention to Inflict such Injuries, or to understand the nature and quality of his act.
This was an action at law by Emma Berger and others against the Pacific Mutual Life Insurance Company of Oalifornia to recover ona policy of accident insurance. New & Palmer and Karnes, Holmes & Krauthoff, for plaintiffs. Trimble & Braley, for defendant. PHILIPS, District Judge. The defendant has demurred to the petition herein, raising the principal question as to whether or Dot the defendant is liable on the policy of insurance sued upon for the
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l<'HED J. KIESEL &: CO.
INS. OFFICE OF
by an insane person is not suiCide. Breasted v. Trust Co., 4: Hill, 73; Id., 8 N. Y. 299; Nimick v. Ihsurance Co., Fed. Cas. No. 10,266. Butdo.ubtless the courts would."ay in respect of. a policy of insurance which in express terms exempts the insurer from liability resulting from suicide, sane or insane, that the clear purpose was to include death by the act or hand of the insured, whether he was sane or insane at the.. time. The inference, however, to be drawn from this provision is that, when the insurance company intended to ex.empt. itself from liability for an injury or death resulting from an act committed by the party when insane, it is expressly so declared; and. therefore when, in the same connection, it only exempted itself from liability for death resulting from an intentional injury inflicted either by the insured or any other person, without the qualification of "sane or insane," the conclusion follows that such exception was not in the mind of the insurer; and on the well-established rule of construction, applied by the courts to contracts of insurance companies, that the terms be construed in favor of the insured rather than iri favor of the insurer, it results that the demurrer should be overl'uled, which is accordingly done.
FRED .T. KIESEL & CO. v. SUN INS. OFFICE OF LONDON.
(Circuit Court of Appeals, Eighth Circuit. June 20, 1898.)
FmE INSURANCE-CONSTRUCTION OF POLICY.
A polley on goods In a warehouse contained a clause which declared that "if a building or any part thereof fall, except as the result of fire, all insurance by this polley on such building or its contents shall immediately cease." The building fell, and the goods were destroyed by fire; but whether the fall was caused hy the fire, or by a gale of wind, was the matter In Issue. Plaintiff requested a charge that, if the building or goods were on fire before the bundlng fell, the company was liable, even though it would not have fallen but for the wind. HeM. that the court properly rejected this request, and correctly charged that, If the fall was caused by the fire, the company was liable, but, If It resulted from some other cause, It was not.
While a poIlcy which is ambiguous or ot doubtful meaning should be constrped most strongly against the insurer, yet, If Its terms are clear and unambiguous, they are to be taken In tllelr plain, ordlna.ry sense, and no construction Is necessary. A question which was not called to the attention at the court below by any objection or request for instructions will not be considered on appeal or writ of error. Tbere is a recognized exception to the general rule requiring a witness to state tacts, and not conclusions, which permits him to state his Inference or opinion from facts he sees or knows, when he draws It from so many minor details that it is impossible to state them 80 that a jury could deduce a just inference from his narrative. But on an Issue as to whether a !lUildlng containing insured goods fell as the result of fire, or was blown down by a high wind, held, that the court committed no error In refusing to permit witnesses, who· testified that they saw the root
ApPEAL AND ERROR-QUESTION NOT RAISED BEI,OW.
OPINION EVIDENCE-WHEN ADMISSIBLE.