Connecticut. Supreme Court of Errors.

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relate solely to the value of the property insured and the
quantity of land in the farm. If the applicant regarded
the property as of the value stated, there would be no
breach of the warranty, although other people differed with
him as to the valuation, and placed a less one upon it. It
cannot be the intent of the insurer that the insured shall by
investigation determine the value of his property, but the
purpose must be to ascertain his opinion of its value. All
the insured is required to do is to give an honest valuation.
The court laid down a rule with reference to such valua-
tions, which correctly stated the law, and was as applicable
to the value of the house burned as to the value of the
entire farm. The jury must have found the house worth at
least f 750, and in so finding found that the plaintiff's valu-
ation of it at $800 was substantially correct. The same
rule applies with reference to the quantity of land in the
farm. This question had no relation to the risk assumed.



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480 HARTFORD DISTRICT.

Bennett v. Agricultural Insurance Co.

But in any event the insured is only required to give his
honest opinion, and not to ascertain accurately by survey or
otherwise the exact quantity of land. Upon these points
questions at issue were fairly submitted to the jury.

3. A new trial will never be granted unless the court
can see that injustice either was, or might have been, done
on the former trial. This rule is so well established and has
been so often applied by this court, that a citation of
authorities in support of it is wholly unnecessary. It is
manifest that the verdict here is strictly in accordance with
justice.

Cabpenteb, J. This is an action on a fire insurance
policy. The building insured was a dwelling house occu-
pied by a tenant. The answer interposed several defences
which will be separately noticed. The plaintiff had a
verdict and the defendant appealed.

1. That the house was unoccupied at the time of the fire.

The policy provides that if " the dwelling house hereby
insured shall cease to be occupied as such, then this policy
shall cease and be of no more force or effect." The finding
shows that the tenant left the house, taking with him all his
furniture, about six o'clock in the evening. The next morn-
ing about two o'clock the house was destroyed by fire.

The defendant requested the court to instruct the jury as
follows : — " By the terms of the policy the insurance there-
under ceased as soon as the house became unoccupied. If
the jury find that the house was unoccupied when the fire
occurred, then there can be no recovery for the loss."

The court did not so charge the jury, but instructed them
as follows : — " If the house had ceased to be occupied within
the meaning of the policy, that defeats a recovery by the
plaintiff." After reciting the language of the policy, the
court proceeded as follows : — " In this connection you will
keep in mind that in the application it is stated that the
house is to be occupied by a tenant, and this clause of the
policy should be construed according to the ordinary usages
of a tenant house. In this case the building was insured to



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JANUARY TERM, 1888. 481

Bennett v, Agricultoral Insurance Co.

be occupied by tenants, and is so expressed in the policy.
There was no contract, expressed or implied, that there
should be no change of tenants while the policy was in
force. On the contrary such changes are so frequent that
they must have been contemplated as probable. During the
time between the retiring of one tenant and the incoming of
another, there may be a vacancy which may continue for a
longer or shorter time, and may exist in spite of the land-
lord's best efforts to prevent it. Now we can hardly
suppose that the parties intended that any such vacancy,
however short, would avoid the policy. Such a construction
seems to us unreasonably straight. The inconvenience of
such a construction is a strong argument against it. It
accords best with the probable intention of the parties to
hold that such a vacancy does not ipso facto avoid the policy.
Applying the rule as here laid down, if you find the house
had ceased to be occupied, your verdict should be for the
defendants."

It will be observed that the court in its charge used the
language of this court in Lockwood v. Middlesex Mutual
Assurance Co,^ 47 Conn., 553. It is manifest that the court
overlooked an important distinction between that case and
this. In that case there was no provision, as there is in this,
that non-occupation should avoid the policy; but the ques-
tion was whether it increased the risk. The contract was
not explicit but was open to construction for the purpose of
ascertaining what was the probable intention of the parties.
Here they have told us» in plain terms what they mean.
The contract is neither obscure nor ambiguous, and there is
no room for interpretation. The court erred in charging as
it did.

It is true that the building burned in a few hours after it
was vacated. But under this clause in the policy we are
unable to see that time is material. The important question
was — was it in fact unoccupied ?

The plaintiff contends that the fire probably originated
before the premises were vacated. Conceding that to be an
important inquiry, it was a question of fact for the jury and



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482 HARTFORD DISTRICT.

Bennett v. Agricultural Insurance Co.

not of law for this court. We cannot assume the fact to be
as claimed, nor that the jury necessarily found it to be so,
as the question was not made in the court below.

2. That there was a breach of the warranties contained
in the policy.

A clause in the policy reads thus : — " All applications for
insurance must be made in writing, and signed by the
applicant or by his authority, and all statements contained
in the application will be taken and deemed to be warran-
ties on the part of the assured."

The application contained the following questions and
answers: — QiieaL "How many acres of land in the place?''
Ans. "Sixty." Quest "What is the value of land and
buildings ? " Ans. " Seventeen hundred dollars."

The defendant requested the court to charge the jury as
follows: — "1. The application being referred to in the
policy as forming a part thereof, all the statements contained
therein are warranties on the part of the assured. 2. It is
of no consequence whether the warranty is material to the
risk or not. If untrue there can be no recovery upon this
policy."

The court did not so charge, but charged that the " state-
ments in the application are warranties, provided they
relate to the risk assumed," and then submitted to the jury
two questions : — (1) Did the statements relate to the risk ?
and (2) were they untrue ?

In this too the court erred. The parties made these
matters material, and they must be so regarded whether
they related to the risk or not. "the only proper (Question
for the jury was whether they were true. If they were not
true there was a breach of the warranty and there can be
no recovery. If they were true in the sense in which the
parties understood them then there was no breach.

A new trial is advised.

In this opinion the other judges concurred.



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JANUARY TERM, 1888. 433

Wilson 0. WilUmantic Linen Co.



Jebby S. Wilson vs. The Wilumantio Linen Com-
pany.

A master is bound to provide for his servant a reasonably safe place for his
work and reasonably safe appliances.

Where, instead of attending personally to it he employs another, who does
it negligently, so that the servant receives an Injury by reason of the
negligence, the master is eqnaUy liable.

The general rule that a servant can not recover for an injury caused by the
negligence of a fellow-servant has no application to such a case.

While it is the duty of a servant to use ordinary care in noticing the condi-
tion of machinery at which he is working, yet he can not be expected to
notice latent defects or any that are not obvious to one not an expert in
machinery.

If a servant has been guilty of negligence in such a matter, yet it must be
negligence essentially contributing to the injury.

A manufacturing corporation employed a superintendent who had charge
of all its machinery and works in several mills. Under him and apx>ointed
by him were overseers of the several rooms, whose duty it was to keep
watch of the machinery and oversee the work in their respective rooms.
These overseers appointed second-hands whose duty it was to act as
overseers of the rooms In their absence. There was also an overseer of
repairs, whose duty it was to make repairs on notice from the super-
intendent or overseer of a room that repairs were needed. Some new
machinery having been procured the person setting it up notified the
superintendent that collars were needed on certain countershafts before
they were used, and the superintendent notified the overseer of repairs to
put them on, but through negligence he failed to do so, and by reason of
the want of a collar a countershaft fell and injured the plaintiff, an
employee in the room. Held that the negligence was that of the corpora-
tion and that it was liable for the ^injury.

And held to make no difference that the plaintiff was not using the
machine as an operative at the time of the injiuy, but was assisting the
overseer of the room by his direction in setting up the countershaft pre-
paratory to its being used by the operatives.

Civil action for an injury to the plaintiff, an employee
of the defendants, by means of defective machinery; brought
to the Superior Court in Windham County. The defend-
ants suffered a default and were heard in damages before
Hovet/y J. The court found the facts and gave its opinion
and judgment upon them as follows: —

At the time of the injury the defendants were and for

Vol. l.— 28



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434 HARTFORD DISTRICT.

Wilson V. Willimantic Linen Co.

some time had been a corporate body, engaged in the
business of manufacturing cotton thread and spools by
means of machinery operated by water power, and for that
purpose employing numerous servants and workmen, in the
village of Willimantic in the town of Windham. Their
property and affairs, during that time, were under the
government and direction of a board of nine able and com-
petent directors, one of whom was president and another
vice-president ; but none of them, except the vice-president,
exercised any personal supervision of the manufacturing
department of the corporation. He was the general manager
of the corporation, and was a competent and in all respects
a fit and suitable person for that position. In the manu-
facturing department, the officer next in rank or grade to
the general manager wtis the resident agent. He had the
direct charge of the property of the corporation in Willi-
mantic and was directly responsible to the general manager
that the property and the men in the employ of the corpor-
ation were, each in their way, doing their proper work. He,
also, was a fit person in all respects for his department. The
first person in charge under him was known as the superin-
tendent. He was the manufacturer and also the master
mechanic of the corporation. He had the direct charge of
all the machinery of the corporation and its construction
and use, and was a competent and suitable person for the
place. He had had a large experience in the business and, in
cotton manufacturing in New England, was at the head of
his profession. The corporation then had in Willimantic
four cotton mills, knovni as mills Nos. 1, 2, 8 and 4 respec-
tively, and one spool-shop, in which their business of manu-
facturing was carried on ; and of all these mills the super-
intendent, in his department, had the general charge. The
several rooms in each mill, the shafting, countershafting and
machinery, and the persons employed to do the work therein,
were in the immediate charge of overseers appointed and
employed, in behalf of the corporation, by the superintend-
ent, and of persons called second-hands, employed by the
respective overseers with the approval of the superintendent,



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JANUARY TERM, 1888. 486

Wilson V, Wlllimwitic Linen Ck).

to act when the overseers were absent. There was also in
the service of the corporation an overseer of repairs, who
was a competent and fit person for the position. The over-
seer of each room was entrusted by the superintendent with
the power to employ the necessary servants or help to do
the work required to be done in his room, and to discharge
those whom he might deem unfit or unnecessary. It was.
his duty at all times to see that his room was clean and in
order, that the persons there employed were performing
tbeir respective duties, that each machine was fulfilling its
work, and that if any machine or any shaft in his room
required repairs, to notify the overseer of repairs, and if he
did not make the repairs, to notify the superintendent. But
it was no part of his duty to procure, put up or set new or
repair old machinery, shafting or countershafting. Those
duties were devolved upon the superintendent, or the over-
seer of repairs under the superintendent's direction. When
new countershafts were hung and new machines were set in
any room and pronounced by the parties hanging or setting
them, or by the overseer of repairs, to be ready for use, but
not before, they came under the charge of the overseer of
that room. It was then the duty of the overseer to start up
the machines and put them in operation, and for that purpose
to connect them by means of belts with the countershafts
and to connect the countershafts by the same means with
the main shaft. But, before doing so, it was his duty to
examine the several machines and see that the rolls were all
right and that the rails were free and traversed easily;
also to set the traverses and to see that they were all
properly oiled and that the rails were properly balanced.
It was also his duty to see that the countershafts were in a
fit condition to run and that the necessary belts were made
and properly put on. If he discovered any defect in the
countershafts or machines, which he could not remedy, it
was his duty to report the same immediately to the supeiv
intendent or to the overseer of repairs. If the report was
made to the superintendent, it was his duty to notify the
overseer of repairs, and it was the duty of the overseer of



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436 HARTFORD DISTRICT.

Wilson V. WillimAntic Linen Co.

repairs on receiving the notice from the superintendent, or
directly from the overseer in charge of the defective shaft-
ing or machinery, to remedy the defect or the defects and
make the necessary repairs. The duty of the second-hand
was to do whatever the overseer, when present, required
him to do, and in his absence to take his place and perform
his duties.

In the month of May or June, 1880, the defendants
remodeled the attic room of mill No. 1, and caused to be
placed therein some new countershafts and some new spin-
ning frames. The countershafts were hung nine feet above
the floor of the room. Some of them were straight shafts,
being of an uniform diameter their entire length, and were
set in open end hangers. Collars were required on those
shafts to hold and keep them in position and prevent them, .
when in motion, from slipping out of the hangers and fall-
ing to the floor. Without collars they were incomplete,
imperfect and dangerous to those who might attempt to use
or belt them. Some other of the new countershafts were
set in open end hangers but were kept in position by
shoulders turned at each end. Those could be distin-
guished from the straight shafts, when the latter were
without collars, only upon a careful inspection. And other
countershafts were set in hangers closed at the outer end,
and those were called closed end hangers. The hangers
were put up and the new countershafts were set by parties
competent to do the work, according to plans or drawings
prepared by order of the superintendent, and under the
immediate supervision of the overseer of repairs. But
some of the straight shafts were set in open end hangers
without collars, and were left in that condition by the par-
ties who set them, because the overseer of repairs, whose
duty it was to furnish the collars, had not a sufiicient supply
on hand for the purpose. Notice of the fact was promptly
given to the superintendent by the party who set the shafts,
and the superintendent at once notified the overseer of
repairs and ordered him to make the collars and put them
on. Collars were accordingly nut on some of the shafts



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JANUARY TERM, 1883. 487

Wilson «. Willimantic Linen Co.

that needed them by the overseer of repairs; but others,
through his negligence, remained without collars for a
period of from four to six weeks after the order to put
them on was giVfen by the superintendent, and until after
the plaintiff sustained the injuries of which he complains.
During that period and before, Philip Wilson, the father of
the plaintiff, was the overseer of the room in which those
shafts were set and William L. Kenyon was his second-
hand. They were competent and fit persons for those
positions, but neither of them was informed or had knowl-
edge of the defective condition of the shafts. Wilson was
directed by the superintendent to start up the new spinning
frames in his room as soon as they should be set and in
readiness for use. The frames were properly set and iu
readiness for use a short time before the 19th of August,
1880. On the 18th of August, 1880, the plaintiff was em-
ployed by Wilson, in behalf of the defendants, to assist in
starting up the new frames the next day and, after that, to
a<;t as his second-hand ; and he entered upon the perform-
ance of his duties in the morning of August 19th, 1880.
The compensation to be paid him was ten dollars a week.
He had previously worked in that room about eight years,
' ending some time in 1879, and the last three of those years
he acted as the second-hand of his father. In the morning
of August 19th, 1880, he and one Horn, another employee
of the defendants in Wilson's room, were directed by Wil-
son and by Kenyon his second-hand, to prepare the neces-
sary belts to connect the new countershafts with the new
spinning fi*ames and put them on and start up the frames as
soon as they could, as the defendants were in a hurry for
the yarn that was to be spun upon those frames. In obedi-
ence to that direction they commenced work between 7 and
8 o'clock in the morning, and in the course of the forenoon
prepared belts for and belted two or three frames and got
them ready to start.

At noon, when the machinery in the mill was stopped,
the overseer of repairs, at the request of Wilson, examined
the pulleys on one of the countershafts and set them, or saw



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488 HARTFORl) DISTRICT.

Wilson V. WilUmantic Linen Co.

that they were set, in range with the pulleys on the spinning
frames that that shaft was to drive, and with the pulleys on
the main shaft. It was his duty to see that the pulleys were
properly set, and that the shaft was ready for the belting,
and ready to be connected with the spinning frames. After
he had made the examination and set the pulleys, as re-
quested, Wilson inquired of him if they were all right, and
on receiving the reply that they were, caused the counter-
shaft to be connected by a belt with the main shaft.

The countershaft was a straight shaft, set in open end
hangers without collars ; but that was not noticed by the
overseer of repairs, notwithstanding the order given him
more than a month before to supply the shafts of that de-
scription with collars; nor had it been noticed by the
overseer of the room or his second-hand, nor by the super-
intendent in his visits to that room, which had been made
daily, sometimes twice or thrice in a day, from the time the
shaft was hung. But Wilson, the overseer, supposing, from
what the overseer of repairs had said to him, that the comi-
tershaft was complete and in a proper condition to be con-
nected with the frames it was to drive, did not examine it
to see whether it needed collars, but directed the plaintiff
and Horn to put on the belts from the countershaft to the'
frames and start up the frames in the afternoon. They
accordingly prepared the belts, and in the afternoon, while
they were attempting to put one of them on a pulley of the
countershaft which was in motion, and thus connect the
countershaft with one of the spinning frames, the shaft, for
the want of collars, was thrown from its bearings and out
of one of the hangers in which it was set, and, breaking the
other hanger, fell and struck the plaintiff and inflicted upon
him severe and permanent injuries. The plaintiff had no
knowledge or information that the shaft needed collars, but
supposed and believed that it was complete and ready to be
put in operation. Nor had he f^ny knowledge or informa-
tion that it was his duty, before attempting to connect the
shaft with the spinning frame, to examine the shaft and see
that it was in such a condition that the connection could be



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JANUARY TERM, 1888. 439

Wilson w. WiUimantlc Linen Co.

safely made ; though it was proved to be the understanding
among mill-owners and tho^e having charge of mills and of
their several departments, that it is the duty, not only of
overseers and second-hands, but also of every person who is
employed and directed to connect shafting with machinery,
to see that every thing is in a proper condition before at-
tempting to make the connection, and that if they fail to do
so they are guilty of negligence.

Upon these facts the plaintiff claims that he is entitled to
recover of the defendants substantial damages. This claim
is resisted by the defendants, who insist that nominal dam-
ages only should be assessed against them, because, they
claim, that the' injuries sustained by the plaintiff were
caused, not by any neglect or fault on their part, but by
the negligence of the plaintiff's fellow-servants. They fur-
ther claim that if they were chargeable with the negligence
of the overseer of repairs in leaving the shaft that fell
without collars, or the negligence of the overeeer of the
room in which the shaft was hung in not ascertaining the
condition of the shaft before he directed it to be belted to
the frame it was intended to drive, they cannot be subjected
to more than nominal damages, because, they claim, that
the negligence of the plaintiff essentially contributed to
produce the injuries.

The judicial decisions in this country and in England
have firmly established the rule that a master is not liable
for injuries sustained by one of his servants through the
negligence of another, while both are engaged in the same
general business, unless the servant by whose negligence
the injuries were occasioned was incompetent or otherwise
nnfit for the duty or work he was employed and called upon
to perform, and his employment is attributable to the want
jof reasonable care on the part of the master. The rule is
founded upon considerations of public policy and upon the
obviously just and rational principle that one who engages
in the employment of another for the performance of speci-
fied duties and services for compensation, assumes and takes
upon himself the natural and ordinary risks and perils inci-



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440 HARTFORD DISTRICT.

Wilson V, WilUmantic Linen Co.

dent to the nature of his employment, including his liability
to injury from the negligence of those who, with due care
on the part of the master, have been employed as his fellow-
servants. And the rule applies not only in those cases in
which the servant injured is engaged in the same grade of
employment as the servant whose negligence occasioned the
injury, but also in cases in which the two servants are en-
gaged in different grades of employment, if the services of
each are directed to the same general end. It also applies
to cases where the injured servant is of a grade of the ser-
vice inferior to that of the servant whose negligence occa-
sioned the injury, though the inferior in grade is subject to
the direction of the superior. And it is' not essential in
order to exempt the master from liability that the injured
servant, at the time of receiving the injury, should be
engaged in the same particular work as the servant by



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