Maril v. Connecticut Fire Insurance

30 L.R.A. 835, 95 Ga. 604

• Court: Supreme Court of Georgia
• Decided: February 18, 1895
• Status: Published

Opinion

Atkinson, Justice.

"With the addition that evidence was introduced showing that proofs of loss were submitted to the defendant •company within the time prescribed, and a demand for payment made in writing; that the demand was never •complied with; that suit was brought within the time limited by the .policy, and proof made that from three hundred to three hundred and fifty dollars would be a proper allowance for counsel fees for the prosecution of this litigation, the facts as. stated in the official report .are sufficiently full for the determination of the questions made in this record. It will be seen from an ex.amination of the official report, as amended supra, that the plaintiff proved his loss, the submission of proofs of loss,'a demand for payment in accordance with the terms ■of the policy sued upon, and the value of counsel fees; .and closed. A motion for nonsuit was made, upon what special ground does not appear in the record; but we may presume from the line of argument pursued here, and the fact that the plaintiff made such a case as would undoubtedly have authorized a finding for him, that the motion for nonsuit was predicated upon the ground that the plaintiff' had rendered void his policy of insurance by keeping and using upon the premises occupied by him benzine and kerosene, contrary to the conditions of his policy of insurance, which pi'ohibited the same. The evidence showed that in his store the assured kept a small quantity each of kerosene and benzine, of the former all told, including that in lamps, about one gallon, of the latter about one pint or a little more. None of either was destroyed by fire. After the court had signified its intention to grant a nonsuit, but before the order to that effect had been taken, the plaintiff offered to prove, in addition to the evidence already submitted, that at the time the insurance was effected, he was carrying on a jewelry business, selling and repairing watches and clocks; that he intended to continue such business, and this fact was known to the defendant; that in the conduct of this business, and as a part of a watchmaker’s material, and as incidental, usual, customary and naturally pertaining to the stock and business, kerosene and benzine were used in small and reasonable quantities in cleaning the works of watches and clocks, the kerosene being used in pai’t in a student’s lamp (kept in the store); and that said benzine and kerosene did not cause the fire, nor contribute to it, and were not even consumed in whole or in part by the fire. This testimony was repelled by the court as being inconsistent with the contract as expressed in the policy; whereupon the court granted a nonsuit, and to this judgment exception is taken.

"We are not now to consider whether, in view of the very trifling and inconsiderable quantities in which the prohibited inflammable substances were used and kept, and the fact that they were so kept as not materially to have affected the risk of the insurer or in any manner to have contributed to the loss, the court would in the first instance have been authorized to grant a nonsuit; but whether, with the supplemental evidence offered, it should have done so. The first question to consider is, whether the testimony offered was competent. The contract of insurance was in writing, and the rule of law is, that parol evidence is inadmissible to add to, take from, or vary the terms of an unambiguous written contract; and the kindred rule to this is, that if the written agreement appears from its terms to1 be so ambiguous as not fully to express the contract between the parties, parol evidence is admissible to explain such ambiguity. If the written agreement is full, explicit and unambiguous, it must be taken as conclusively representing the real contract between the parties, and neither will be permitted by parol to in any manner vary its terms. If, for want of fullness of statement, the contract be indefinite or uncertain, pai’ol evidence is admissible, not to vary, add to or take from the contract, but to explain and so illuminate it as to make the real intention of the parties apparent. It will be seen by an examination of its provisions that the policy of insurance covers a number of articles specifically, including watches, diamonds, clocks, etc., and finally by the use of the words “watchmaker’s materials” such articles as would be comprehended within that general descriptive term. In order to determine what was covered, or by the parties intended to be covered, by that general term, it is necessary to inquire somewhere what it means. No index to its meaning is afforded by any other expression contained in the policy; there is nothing in that instrument to indicate what the pai’ties intended should be its meaning. It is therefore an expression which must be classed as ambiguous, and being ambiguous, parol evidence is admissible to explain its meaning. The plaintiff offered to prove that both kerosene and benzine in reasonable quantities were used in his business as a part of a watchmaker’s material, and that their use as such was necessary, customary and usual in the conduct of such business; that he was engaged in the conduct of this business at the time this insurance was effected, and that the defendant knew such to be the fact. Had he proven these facts to the satisfaction of the jury, then he would have shown that the very articles, for the keeping and use of which he was nonsuited, were in fact themselves made by the terms of his policy the subject of the insurance, and the jury would have been authorized to find that the policy was written with reference to the continuance of such a business. If they were a part of a watchmaker’s materials, they were as much covered by the policy of insurance as the springs, hands, dials, tools, glasses, .or any other articles used by a watchmaker in the conduct of his business. If then'by the'stating clause of the policy itself an article were insured, it surely could not be seriously insisted that the policy would be avoided because of the printed conditions thereinafter appearing, to the effect that the keeping and use of the very article insured in the manner contemplated by the parties should render the policy void. One of the elementary rules for the construction of policies of insurance is, that if there be a conflict between the written statement of the subject of insurance, and the printed conditions of the policy, the former must prevail. A contrary doctrine would present the strange anomaly of an insurance company issuing to another a policy of insurance containing such conditions as that under no circumstances could payment of a loss be thereunder legally demanded. A rule which permitted the printed conditions to control the written statement of the subject upon which the insurance was issued, would place the insurance company in the peculiar condition of saying, in effect: I issue you this policy; I accept your money in satisfaction of my demand for premiums; I insure your property to be used in your business, but if you use it, your policy is void. A parallel case, and one which alone adequately expresses the peculiar paradox in the case supposed, is to be found in the sage advice given to her youthful daughter when an affectionate but over-cautious mother, in reply to the simple request:

“ Mamma, may I go out to swim ?”

said to her:

“ Yes, my darling daughter;

Hang your clothes on a hickory limb,

But don’t go near the water.”

Even if the inflammable substances, the keeping and use of which it is claimed avoided the policy of insurance, were not of themselves a subject of the insurance, yet if the articles were employed by the assured in the conduct of the particular business, and the use of such articles is a necessary incident to the conduct of such a business', the parties will be presumed to have contracted with reference thereto, and at the time the insurance policy was issued the insurer will be presumed to have had in contemplation the use of such substances by the assured when he assumed the risk, and, under such'circumstances, will be presumed to have waived the'condition under which .the use of such substance would render the policy void. Eor instance, if he insured a powder manufactory, he must have contracted with inference to the use of combustible materials necessary to be employed in its manufacture. Thus where a policy covered property described as a stock such as is usually kept in a general retail store, and the keeping of gunpowder was prohibited by the printed portions of the policy, it was held that if gunpowder formed a part of the general stock usually kept in a retail store, then the keeping of the powder was not a violation of the conditions of the policy. Peoria Fire & Mutual Insurance Company v. Hall, 12 Mich. 202. So if the insurance be upon a printing establishment and the keeping or use of camphene was prohibited, as the policy covered a printer’s stock and materials, and it was shown that camphene was necessary to clean the type and was usually employed by printers for that purpose, the prohibition was held not to apply. Harper v. New York City Insurance Company, 22 N. Y. 441. So also the use of kerosene was prohibited, but as the policy covered a photographer’s stock, materials, etc., and it being shown that kerosene was usually employed in the business for heating paper and other purposes, it was held that the prohibition did not apply, even though gas could have been used equally as effectually for that purpose. Hall v. New York Insurance Company, 58 N. Y. 292. Those cited are a few of the many cases illustrating the principle which we here announce. We have seen that parol evidence was admissible to explain the meaning of the term “watchmaker’s matei'ials” as employed in the policy; and therefore the court erred in repelling the testimony offered by the plaintiff, to the effect that benzine and kerosene, in the quantities in which he kept and used them, were necessary to be used in the conduct of that business; and the testimony so excluded, coupled with such testimony as was already introduced, makes such a case as that, whether we treat the kerosene and benzine in question as included among those articles insured under the general term “ watchmaker’s materials,” or whether we treat them as simply inflammable substances used in connection with and as a part of the business in which the assured was engaged —the property employed by him in which business was covered by this insurance, in either event the jury would have been warranted in finding in his favor against the company. We therefore conclude that the court ei’red in granting a nonsuit, and the judgment is accordingly

Reversed.