136 U. S. 287, 34 L. ed. 408, 10 Sup. Ct. Rep. 1019; Imperial F. Ins. Co. v. Coos County, 151 U. S. 452, 38 L. ed. 231, 14 Sup. Ct. Rep. 379; Manufacturers' Indemnity Co. v. Dorgan, 7 C. C. A. 581, 16 U. S. App. 290, 58 Fed. 945; Travelers' Ins. Co. v. Randolph, 24 C. C. A. 305, 47 U. S. App. 260, 78 Fed. 754; Kister v. Lebanon Mut. Ins. Co. 128 Pa. 553, 5 L. R. A. 646, 18 Atl. 447. The forfeiting provisions should be construed as affecting the right to renewals,that is, as affecting a continuation of the policies in force in subsequent years, and not as a limitation upon the time for which the premium had already been paid. Having paid for thirteen months of insurance, the assured should not be subjected to a forfeiture which in effect "would result in the forfeiture of a portion of the premium already paid." Methvin v. Fidelity Mut. Life Asso. (Cal.) 58 Pac. 387; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 689; New York L. Ins. Co. v. Eggleston, 96 U. S. 572, 24 L. ed. 841; Thompson v. Knickerbocker L. Ins. Co. 104 U. S. 252, 26 L. ed. 765; Phonix Mut. L. Ins. Co. v. Doster, 106 U. S. 30, 27 L. ed. 65, 1 Sup. Ct. Rep. 18; Hartford Life Annuity Ins. Co. v. Unsell, 144 U. S. 439, 36 L. ed. 496, 12 Sup. Ct. Rep. 671. The controverted provisions of the policies are difficult of interpretation, uncertain, and ambiguous. New York L. Ins. Co. v. Dingley, 35 C. C. A. 245, 93 Fed. 153; Rosenplanter v. Providence Sav. Life Assur. Soc. 46 L. R. A. 473, 37 C. C. A. 566, 96 Fed. 721; Fidelity & C. Co. v. Loewenstein, 46 L. R. A. 450, 38 C. C. A. 29, 97 Fed. 20. Neither a fraudulent purpose, nor an intent to deceive or mislead, is essential to the application of the doctrine of estoppel. Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct. Rep. 657; Dickerson v. Colgrove, 100 U. S. 580, 25 L. ed. 619: 2 Pom. Eq. Jur. § 805; Dair v. United States, 16 Wall. 1, 21 L. ed. 491; Ewart, Estoppel, p. 97. It is always enough if the conduct or representations naturally result in accomplishing a legal fraud. Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811. 6 Sup. Ct. Rep. 657. The doctrine of equitable estoppel may be applied in a law action. Barnard v. German American Seminary, 49 Mich. 444, 13 N. W. 811; Kirk v. Hamilton, 102 U. S. 77, 26 L. ed. 82; John Shillito Co. v. McClung, 45 Fed. 778; Union Mut. L. Ins. Co. v. Wilkinson, 13 Wall. 222, 20 L. ed. 617. Smith was the agent of the company. Jamison v. State Ins. Co. 85 Iowa, 229, 52 N. W. 185: Cook v. Federal Life Asso. 74 Iowa, 746, 35 N. W. 500: Equitable Life Assur. Soc. v. Clements, 140 U. S. 226, sub nom. Equitable Life Assur. Soc. v. Pettus, 35 L. ed. 497, 11 Sup. Ct. Rep. 822; Knights Templar & M. Life Indemnity Co. v. Berry, I C. C. A. 561, 4 U. S. App. 353, 50 Fed. 511; Continental L. Ins. Co. v. Chamberlain, 132 U. S. 304, 33 L. ed. 341, 10 Sup. Ct. Rep. 87; New York L. Ins. Co. v. Russell, 23 C. C. A. 43. 40 U. S. App. 530, 77 Fed. 94; Central' Nut. Bank v. Hume, 128 U. S. 195, 32 L. ed. 370, 9 Sup. Ct. Rep. 41; Joyce, Ins. § 194. The burden of proof to show that a legal and sufficient notice was properly given rests upon the insurance company. It must show a strict compliance with the terms of the statute before it can assert a forfeiture. Baxter v. Brooklyn L. Ins. Co. 119 N. Y. 454, 7 L. R. A. 293, 23 N. E. 1048; De Frece v. National L. Ins. Co. 136 N. Y. 151, 32 N. E. 556; Phelan v. Northwestern Mut. L. Ins. Co. 113 N. Y. 147, 20 N. E. 827; Griffith v. New York L. Ins. Co. 101 Cal. 627, 33 Pac. 113; Johnson v. New York L. Ins. Co. 109 Iowa, 711, 50 L. R. A. 99, 78 N. W. 905; New York L. Ins. Co. v. Dingley, 35 C. C. A. 245, 93 Fed. 153; Rosenplanter v. Provident Sav. Life Assur. Soc. 46 L. R. A. 473, 37 C. C. A. 566, 96 Fed. 721; Mutual L. Ins. Co. v. Hill, 49 L. R. A. 127, 38 C. C. A. 159, 97 Fed. 263; Mutual L. Ins. Co. v. Dingley, 49 L. R. A. 132, 40 C. C. A. 459, 100 Fed. 408. Inasmuch as none of the essential contents of the notice are found or anywhere given, the last clause of the 10th finding is without force or effect to sustain the judgment, because it states a mere conclusion of law, and not the finding of an ultimate fact. The general statement that a notice was sent "of the coming due of the premiums" at some unstated time does not sufficiently state the ultimate fact. United States v. Harris, 23 C. C. A. 483, 46 U. S. App. 653, 77 Fed. 825; Cooper v. French, 52 Iowa, 531, 3 N. W. 538; 12 Enc. Pl. & Pr. pp. 1038-1046; Daube v. Philadelphia & R. Coal & I. Co. 23 C. C. A. 420, 46 U. S. App. 591, 77 Fed. 715; Keene Mach. Co. v. Burratt, 40 C. C. A. 571, 100 Fed. 590. Findings of fact which merely announce certain legal conclusions deducible from facts not stated are not sufficient to support a judgment. S Enc. Pl. & Pr. p. 943; Kane v. Rippey, 22 Or. 299, 29 Pac. 1005. The burden of proving a strict compliance with all the essential requirements of the statute being upon the company, and the special findings being silent as to every essential fact of notice, the court is bound to infer an insufficient notice, for nothing can be supplied to such findings by intendment. Every fact essential to support the judgment must affirmatively appear in the findings. United States v. Harris, 23 C. C. A. 483, 46 U. S. App. 653, 77 Fed. 821. An insufficient finding upon any material issue or fact has the same legal effect as no finding at all, and therefore is equivalent to an express finding against the party on whom the burden of proof rests, which in this case was the company. Keene Mach. Co. v. Barratt, 40 C. C. A. 571. 100 Fed. 590. The special findings of the circuit court are such that this court should reverse both the circuit court of appeals and the circuit court, and remand the case, with suitable instructions to enter judgment in favor of the petitioner and against the respondent for the sum of $5.965, together with interest thereon from November 1, 1898, and for costs in all the courts. The retention of the policy was an approval of the terms of the applications as submitted to the company, and of the terms of the policies as issued thereon. The consequence of that approval, after his death, cannot be avoided. New York L. Ins. Co. v. Fletcher, 117 U. S. 519, 29 L. ed. 934, 6 Sup. Ct. Rep. 837. All previous arrangements were merged in the written agreement. Union Mut. L. Ins. Co. v. Mowry, 96 U. S. 544, 24 L. ed. 674. As parol evidence is not admissible to show that a written contract varies from the previous agreement of the parties, parol evidence of a contemporaneous representation as to the legal effect of its contents is like wise to be excluded. LaFarge v. Rickert, 5 Wend. 187, 21 Am. Dec. 209. It must be presumed that McMaster read the applications and the policies, and was fully cognizant of the limitations on the authority of the agent therein expressed. Globe Mut. L. Ins. Co. v. Wolff, 95 U. S. 329, 24 L. ed. 388; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 240, 24 L. ed. 689. The failure to read the policies, if in fact such failure continued after the date of their receipt, was gross negligence. It was the duty of the insured to read and acquaint himself with their contents, in order that any error or mistake or divergence from the terms of the application, appearing in them, might promptly be brought to the attention of the company and corrected. By failing to report any such, the insured must be presumed to have accepted the policies in accordance with their terms, and to have agreed that they should remain as the basis of the contract of insurance. New York L. Ins. Co. v. Fletcher, 117 U. S. 519, 29 L. ed. 934, 6 Sup. Ct. Rep. 837. The payment of the first premium made upon delivery of the policy, being but a part of a fixed and definitely ascertained whole, viz., one twentieth of the entire amount of premiums required by the policy to be paid, carried the insurance to the next pay day and one month beyond. The fact that the next pay day occurred less than twelve months after such payment does not alter the case, for the payment made was not a payment for such period, but merely one of twenty similar payments which by the terms of the policy were required to be made on a designated day in each and every year of the accumulation period. Methvin v. Fidelity Mut. Life Asso. 129 Cal. 251, 61 Pac. 1112; Bryan v. National Life Ins. Asso. 21 R. I. 149, 42 Atl. 513; New York L. Ins. Co. v. Statham, 93 U. S. 24, 23 L. ed. 789. *Mr. Chief Justice Fuller delivered the [35] opinion of the court: By the payment of the annual premiums in advance and the delivery of the policies, McMaster's life became insured in the sum of $5,000. The contracts were not assurances for a single year, with the privilege of renewal from year to year on payment of stipulated premiums, but were entire contracts for life, subject to forfeiture by failure to perform the condition subsequent of payment as provided, or to conversion in 1913 at the election of the assured. Thompson v. Knickerbocker L. Ins. Co. 104 U. S. 252, 26 L. ed. 765; New York L. Ins. Co. v. Statham, 93 U. S. 30, 23 L. ed. 791. The contention of the company presented by its answer was that McMaster requested that the policies "should be issued, dated, and take effect the same date as the application, namely, the 12th day of December, 1893;" that the policies were accordingly so issued; and that McMaster's acceptance of them estopped his representative from deny. ing that date, or claiming that the request that the policies should be so dated was not made by him. But the policies were not dated December 12, and were dated December 18, the day on which they were actually issued. The applications were in terms parts of the policies, and by them it was agreed that the policies, though issued, should not be in *force until [36] the actual payment and acceptance of the premiums. This was a provision intended to cover any time which might elapse between issue and delivery and payment. So that, notwithstanding the premiums in this instance were not actually paid and received and the policies delivered until December 26, it may be conceded that, and in accordance with the practice in such matters, the contracts of insurance commenced to run from December 18 rather than from December 26. They were certainly not in force on December 12, 1893. No controversy was raised as to fractions of a day, or the exclusion or inclusion of the first day, and it was conceded that payment on January 12, in one view, or on January 18, in the other, would have averted a forfeiture. Assuming, however, that the alleged request was not made by McMaster, that it was not, at least literally, complied with, or that it was immaterial, the company in sists that the policies expressly required payment of the annual premiums, subsequent to the first (payable and paid on delivery), on December 12 in each year, commencing with December 12, 1894; that McMaster in accepting them without objection became bound by this requirement, and could not plead ignorance thereof resulting from not reading them when tendered; and that, therefore, these policies were properly forfeited January 12, 1895, being twelve months from December 12, 1893, with month of grace added. a The applications were part of the policies, and from them it appeared, and was found by the circuit court, that McMaster applied for insurance "on the ordinary life table, the premium to be payable annually." He was solicited to insure by the company's agent, and might, according to the company's form which was used, have asked that the premiums be payable annually, semiannually, or quarterly, but he chose that they should be payable annually, and that the rate of premium should be calculated on that basis by the ordinary life table. The company assented to this, and fixed the annual premium on each policy at $21, on payment of which-that is, payment in advance the policy was to go into effect. The payments were made, and the insurance [37]was put in force for McMaster's life, *subject, it is true, to forfeiture for nonpayment of subsequent premiums, but forfeiture when? If within the first year then the payment for that year did not secure the immunity from forfeiture during the year, which had been contracted and paid for. But the company says that McMaster requested that the policies should go into effect on December 12, 1893, and that his representative is estopped from denying that that is the operation of the policies as framed and accepted, or that the second premiums matured December 12, 1894. It was found from the evidence that after McMaster had signed the applications, and without his knowledge or assent, the agent of the company inserted therein: "Please date policy same as application;" and it was further found that when the policies were returned to Sioux City, and were taken by the company's agent to McMaster, he "asked the agent if the policies were as represented, and if they would insure him for the period of thirteen months, to which the agent replied that they did so insure him, and thereupon McMaster paid the agent the full first annual premium or the sum of $21 on each policy, and without reading the policies he received them and placed them away." We think the evidence of this unauthorized insertion, and of what passed between the agent and McMaster when the policies were delivered, taken together, was admissible on the question whether McMaster was bound by the provision that subsequent payments should be made on December 12, com mencing with December 12, 1894, because requested by him, or because of negligence on his part in not reading the policies. The applicable statutes of Iowa declared that "any person who shall hereafter solicit insurance or procure applications therefor shall be held to be the soliciting agent of the insurance company or association issuing a policy on such application, or on a renewal thereof, anything in the application or policy to the contrary notwithstanding." Each policy provided that after it had been in force for three months "a grace of one month will be allowed in payment of subsequent premiums, subject to an interest [38]charge of 5 per cent per annum for the number of days during which the premium remains due and unpaid. During the said month of grace the unpaid premium, with interest as above, remains an indebtedness due the company. and, in the event of death during said month, this indebtedness will be deducted from the amount of the insurance." This was a month in addition to the period covered by premiums already paid. McMaster was justified in assuming, and on the findings must be held to have assumed, that if he paid the first annual premium in full he would be entitled to one year's protection, and to one month of grace in addition, that is, to thirteen months' immunity from forfeiture. And the findings show that the company, by its agent, gave that meaning to the clause, and that McMaster was induced to apply for the insurance by reason of the protection he supposed would be thus obtained. In Continental L. Ins. Co. v. Chamberlain, 132 U. S. 304, 33 L. ed. 341, 10 Sup. Ct. Rep. 87, it was decided that a person procuring an application for life insurance in Iowa became by force of the statute the agent of the company in so doing, and could not be converted into the agent of the assured by any provision in the application. In that case the applicant was required to state whether he had any other insurance on his life. He was in fact a member of several co-operative associations, and there fore did have other insurance; but the soliciting agent of the company, to whom he stat ed the facts, believing that insurance of that kind was not insurance within the meaning of the question, wrote "No other" as the proper answer, at the same time assuring the applicant that it was such. And this court held that the company was bound by the interpretation put upon the question by its soliciting agent. When, then, McMaster signed these applications he understood, and the company by its agent understood, that if the risks were accepted at the home office he would, by paying one year's premium in full, obtain con tracts of insurance which could not be forfeited until after the expiration of thirteen months. The company accepted the risks and issued the policies December 18, and they were delivered and the premiums paid December 26. *Bearing in mind that McMaster had made[39] no request of the company in respect of antedating the policies, and was ignorant of in fact, and not informed or notified in any the interpolation of the agent, and ignorant way, of the insertion of December 12 as the date for subsequent payments, he had the with the applications as they had left his right to suppose that the policies accorded hands, and that they secured to him, on pay. ment of the first annual premiums in advance, immunity from forfeiture for thirteen months. And the agent assured him that this was so. The situation being thus, we are unable to concur in the view that McMaster's omission to read the policies when delivered to him and payment of the premiums made constituted such negligence as to estop plaintiff from denying that McMaster by accepting the policies agreed that the insurance might be forfeited within thirteen months from December 12, 1893. Supreme Lodge K. of P. v. Withers, 177 U. S. 260, 44 L. ed. 762, 20 Sup. Ct. Rep. 611, and cases cited; Fitchner v. Fidelity Mut. F. Asso. 103 Iowa, 279, 72 N. W. 530; Hartford Steam Boiler Inspection & Ins. Co. v. Cartier, 89 Mich. 41, 50 N. W. 747. On the other hand, can the company deny that McMaster obtained insurance which was not forfeitable for nonpayment of premiums within thirteen months after the first payment? If it can, by reason of its own act, without McMaster's knowledge, actual or legally imputable, then the company's conduct would have worked a fraud on McMaster in disappointing, without fault on his part, the object for which his money was paid. The motive of the agent to get a bonus for himself rather than to deceive McMaster is not material, as the result of his action would be the same. To permit the company to deny the acts and statements on which the transaction rested would produce the same injury to McMaster, no matter what the agent's motives. ond annual premium within that year be given greater effect than the right to cancel the policies from January 18, 1895, if such payment were not tendered until after the lapse of thirteen months from December 12, 1893? To hold the insurance forfeitable for nonpayment of another premium within the year for which payment had already been fully made would be to contradict the legal effect under the applications and policies of the first annual payment. Clearly, such a construction is uncalled for, if the words "the 12th day of December in every year there after" could be assumed to mean in every [41] year after the year for which the premiums had been paid. But if not, taking all the provisions together, and granting that the words included December 12, 1894, nevertheless it would not follow that forfeiture could be availed of to cut short the thirteen months' immunity from December 18, 1893, as the premiums had already been paid up to December 18, 1894. And the company could not be allowed, on this record, by mak But what is the proper construction of ing the second premiums payable within the these contracts in respect of the asserted for- period covered by the payment of the first feiture? The company, although retaining premium, to defeat the right to the month the premiums paid, and not offering to re- of grace which had been proffered as the inturn them, contends that, if McMaster was ducement to the applications, and had been not bound by an agreement that the subse-relied on as secured by the payment. If quent premiums should be paid on Decem- death had occurred on December 18, 1894, ber 12, then that the minds of the parties or between the 12th and 18th, it is quite [40]had not met because it had not contracted clear that recovery could have been had, and except on the basis of payments so to be as the contracts were for life, and were not made; but the question still remains wheth- determinable (at least for twenty years) at er the right of recovery in this case is de-a fixed date, but only by forfeiture, it appendent on such payment on the 12th day of December, 1894, or within thirty days there after. We are dealing purely with the question of forfeiture, and the rule is that if policies of insurance contain inconsistent provisions, or are so framed as to be fairly open to construction, that view should be adopted, if possible, which will sustain, rather than forfeit, the contract. Thompson v. Phenix Ins. Co. 136 U. S. 287, 34 L. ed. 408, 10 Sup. Ct. Rep. 1019; First Nat. Bank v. Hartford F. Ins. Co. 95 U. S. 673, 24 L. ed. 563. Each of these policies recited that it was made in consideration of the written application therefor, which was made part there. of, and of the payment in advance of an annual premium of $21, "and of the payment of a like sum on the 12th day of December in every year thereafter during the continuance of this policy." pears to us that the applicable rules of construction forbid the denial of the month of grace in whole or in part. It is worthy of remark that it was specifically provided that after the policies had been in force one full year they should become incontestable on any other ground than nonpayment of premiums, and we suppose it will not be contended that if any other ground of contest had existed and death had occurred between December 12 and December 18, 1894, the company would have been cut off from making its defense, because the policies had been in force "one full year" from December 12. And if not in force until December 18, the date of actual issue, how can it be said that liability to forfeiture accrued before the twelve months had elapsed? The truth is the policies were not in force until December 18, and as the premiums Does this latter provision require payment were to be paid annually, and were so paid of an annual premium during the year al-in advance on delivery, the second payments ready secured from forfeiture by payment made in advance? May not the words "in every year thereafter" mean in every year after the year the premiums for which have been paid? Or in every year after the current year from the date of the policy? were not demandable on December 12, 1894, as a condition of the continuance of the policies from the 12th to the 18th. And as the policies could not be forfeited for nonpayment during that time the month of grace could not be shortened by deducting the six days which belonged to McMaster of right. At all events, if the payment in advance In our opinion the payment of the first was a payment which put in force a contract year's premiums made the policies nonfor-#®] good for life, determinable by nonpayment of feitable for the period of thirteen months, subsequent premiums, and this first payment and inasmuch as the death of McMaster took was payment of the premiums for a year, I place within that period, the alleged forfeit could the requirement of payment of a sec- ure furnished no defense to the action. Mr. Justice Brewer did not hear the argument and took no nart in the decision. If any of the printed conditions in a policy of fire insurance are repugnant to the main purpose of insurance against perils by fire, they must yield; otherwise the policy becomes a mere deception, instead of the pro MILTON C. MITCHELL, Plff. in Err., tection which the parties to it designed. v. POTOMAC INSURANCE COMPANY GEORGETOWN, D. C. (See S. C. Reporter's ed. 42-53.) Hoffman v. Etna F. Ins. Co. 32 N. Y. 405, OF 88 Am. Dec. 337; Viele v. Germania Ins. Co. 26 Iowa, 66, 96 Am. Dec. 83; Barnard v. National F. Ins. Co. 27 Mo. App. 26; Fraim v. National F. Ins. Co. 170 Pa. 151, 32 Atl. 613; Faust v. American F. Ins. Co. 91 Wis. lighted 158, 30 L. R. A. 783, 64 N. W. 883; Yoch v. Home Mut. Ins. Co. 111 Cal. 503, 34 L. R. A. 857, 44 Pac. 189. 1. An instruction submitting to the jury a question which is not based on any evidence is properly denied. 2. The insurance company ought not to be heard to say that it insured an explosive only in the event it did not explode,-practically the only thing gasoline or its vapor can do when brought into contact with fire. An explosion caused by gasoline kept in a retail stove and tin store is not covered by a policy insuring the stock of goods by a written clause including the grant of a privilege Harper v. New York City Ins. Co. 22 N. to keep a limited quantity of gasoline, where Y. 441; Lynn Gas & Electric Co. v. Meriden the printed clauses of the policy exclude lia-F. Ins. Co. 158 Mass. 570, 20 L. R. A. 297, bility for explosions of any kind unless fire ensues, and then cover loss or damage by fire only. 8. A lighted match is not a fire within the meaning of an insurance policy excluding liability for damages caused by explosions, so as to cover damages from an explosion caused by the match. [No. 51.] 33 N. E. 690. The instruction of the court below restricting the meaning of the word "explosion" to what the ordinary man would understand to be meant by that word is at variance with the well-settled rule that where a contract of insurance is so drawn as to be ambiguous, or to require interpretation, or to be fairly susceptible of two different constructions, so that reasonably intelligent men on reading Argued October 23, 24, 1901. Decided No- the contract would honestly differ as to the vember 11, 1901. IN to See same case below, 16 App. D. C. 241. Mr. Samuel Maddox argued the cause and filed a brief for plaintiff in error: meaning thereof, that construction will be adopted which is most favorable to the assured. Imperial F. Ins. Co. v. Coos County, 151 U. S. 462, 38 L. ed. 235, 14 Sup. Ct. Rep. 379. It is also at variance with that other wellestablished rule which holds that conditions providing for disabilities and forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced. Hoffman v. Elna F. Ins. Co. 32 N. Y. 405, 88 Am. Dec. 337. Whenever there is a question of fact before the court, and there is any testimony, no matter how slight, tending to prove the ex- Mr. J. Holdsworth Gordon argued the istence of such fact, the question is one with-cause and filed a brief for defendant in erin the peculiar province of the jury, and it is reversible error in the court to withdraw it from them. ror: Where a lighted match is applied to the escaped gases, and an explosion thereby ocRichmond & D. R. Co. v. Powers, 149 U. curs, which causes damage, but is not folS. 43, 37 L. ed. 642, 13 Sup. Ct. Rep. 748. lowed by combustion, the explosion is the If the jury found that there was fire, how-proximate cause of the injury, and the lightever slight, in the back cellar, just before the ed match is only the remote cause. In such explosion and causing it, their verdict must case, fire does not reach the property inhave been for the plaintiff. jured, but the concussion resulting from the Hamburg Transatlantic F. Ins. Co. v. Dor-explosion does the damage, and is the proxisey, 56 Md. 70; Washburn v. Farmers' Ins. NOTE. On the liability of an insurer for loss caused by explosion-see Heuer v. Northwestern National Ins. Co. (Ill.) 19 L. R. A. 594, and note. mate cause. Hamburg Transatlantic F. Ins. Co. v. Dorsey, 56 Md. 70; Heuer v. North-Western National Ins. Co. 144 Ill. 393, 19 L. R. A. 594, 33 N. E. 411. |