Nusbaum v. Hartford Fire Ins.

120 A. 481, 276 Pa. 526, 1923 Pa. LEXIS 627
CourtSupreme Court of Pennsylvania
DecidedMarch 5, 1923
DocketAppeal, No. 9
StatusPublished
Cited by21 cases

This text of 120 A. 481 (Nusbaum v. Hartford Fire Ins.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nusbaum v. Hartford Fire Ins., 120 A. 481, 276 Pa. 526, 1923 Pa. LEXIS 627 (Pa. 1923).

Opinion

Opinion by

Mr. Justice Schaffer,

Defendant issued its policy of insurance to plaintiff against all direct loss and damage by fire to an amount not exceeding $5,000 on the use and occupancy of build ings belonging to the insured. The policy set forth: “The conditions of this insurance are, that if the above named buildings, or any part thereof, or the machinery, contained therein, or any part thereof, shall be destroyed, damaged or disabled by fire occurring during the term of this policy, so that the assured shall be entirely prevented from carrying on the business of, principally manufacturing and storage of ice, then this company shall be liable at the rate of not exceeding $16.67 per day for each working day of such prevention; and in case of such buildings and machinery are so disabled as to prevent the full daily average profit yielded by the business of the insured previous to the fire from being realized, then this company shall be liable per day for that proportion of not exceeding $16.67, which the profit so prevented from being realised bears to the full a/oerage daily profit previous to the fire, not exceeding in any case the sum insured.” Another clause reads: “It is further understood and agreed that it is the intention of this insurance to reimbwrse the insured for loss of profits and other fixed charges due to the disablement of power plant and or power machinery, causing cessation of the operation of the plant (in whole or in part), caused by fire in such building or buildings on the premises.” A third provision recites: “The intention of this policy is that the insured shall be indemnified for actual loss of profits during the time when the premises above described could, with ordinary diligence and dispatch, have been repaired or rebuilt with like material and like construction and the machinery replaced therein.”

There were other similar policies Covering the property, as a result of which defendant was liable for but one-fourth of the entire loss.

[529]*529Plaintiff’s plant consisted of four separate buildings, one of which, an ice storage house, was destroyed by fire. In this building was an elevator used to elevate and lower the ice, operated by an electric motor. There was no other machinery in it and none other was in any way affected by the fire.

Suit was brought on the policy and a verdict and judgment recovered for $3,409.22, from which defendant appeals.

Plaintiff was permitted to recover for loss of profits, based upon an average production of 460 cakes of ice per day before the fire, on which there was an estimated profit of 25 cents per cake, and an average production of 244% cakes per day after the fire at a like profit, the loss being $53.88 per day for 176 days, and, in addition, under the clause in the policy providing for recovery for loss by “fixed charges,” a sum, representing interest on the value of the building during part of the time it was being rebuilt, and also for a proportion of the wages of the superintendent of the plant and of laborers employed in storing the ice, who, it was testified, were necessary to be retained in order to enable full operation of the plant to be resumed when the storage house was rebuilt.

Appellant’s first position is that the court below was in error in holding, there being only a partial suspension of business and a partial loss of profits, that the policy permits a recovery of the entire amount of profits lost, not exceeding $16.67 per day up to the amount of the policy; that the jury should have been instructed that there could be a recovery for only a proportionate part of-$16.67 per day, measured by the ratio of the profits prevented by. the fire from being realized to the average daily profit before the fire. On this branch of the case, we think the court properly construed the policy. While its language as to this feature of liability is not entirely clear, it must be borne in mind that the policy was prepared by the company and doubts in construction of the language used should be resolved in favor of the insured': [530]*530Stacey v. Franklin Fire Ins. Co., 2 W. & S. 506; Western Ins. Co. v. Cropper, 32 Pa. 351; Buckley v. Garret, 47 Pa. 204; Teutonia Fire Ins. Co. v. Mund, 102 Pa. 89; Livingstone v. Boston Ins. Co., 255 Pa. 1; Hillman Transportation Co. v. Home Ins. Co., 268 Pa. 547.

The words in controversy are those covering the contingency of a partial loss, in which event the liability is “that proportion of not exceeding $16.67 which the profit so prevented from being realized bears to the full average daily profit previous to the fire.” The language “for that proportion of not exceeding $16.67” is not intelligible as it stands, because the proportion is not stated. That proportion of what? In effect, defendant says “of $16.67,” and would supply these figures so that it would read “for that proportion of $16.67 not exceeding $16.67.” To say the least, this would be a most awkward form of expression. Plaintiff would have the word “of” read “thereof.” This would make the phrase intelligible and state a proportion as it would then read “for that proportion thereof [of the full average daily profit previous to the fire] not exceeding $16.67 which the profit so prevented from being realized bears to the full average daily profit previous to the fire.” If the effect of the fire had been to entirely prevent the insured from carrying on his business, the company was to be liable “at the rate of $16.67 per day.” That is to say, if the lost profits amounted to that sum, then it was to be paid. It is difficult to comprehend why if the “buildings and machinery are so disabled as to prevent the full daily average profit yielded......previous to the fire from being realized” and where the partial loss amounted to $16.67 or more, that that sum should not be paid just as it would be required to be if the “insured shall be entirely prevented from carrying on the business.” When by the subsequent explanatory or intent-declaring clause the company endeavors to make clear the obligation assumed, it says, “The intention of this policy is that the insured shall be indemnified for actual loss of profits,” [531]*531and lie would not be so indemnified if Ms actual loss of profits equalled or exceeded $16.67 per day unless be was paid that sum.

If the word “of” be read “thereof” or the word “it” be interpolated between “of” and “not,” so that the phrase shall read “that proportion thereof not exceeding $16.67” or “that proportion of it not exceeding $16.67,” all doubtfulness of meaning is dispelled; We are of opinion that the policy should be thus construed. Such interpolation of.a word or part of a word, to clear the meaning, is justified.

The primary object in construing a contract is to discover the intention of the parties. This is ordinarily to be taken from the instrument itself, effect being given to every part where possible, and each part being read in the light of and in connection with every other part.' Where clear language has not been used in parts of the contract but other parts of the instrument plainly show what the intention of the parties is, there is a line of cases which decides that words may be inserted or substitutions made in order to give effect to the known intention when the ambiguity or equivocal meaning has been the result of palpable error. Illustrative of this are the following: Knisely v. Shenberger, 7 Watts 193; Danker v. Atwood, 119 Mass. 146; Ex parte Fulton, 7 Cowen (N. Y.) 484; and Scheid v. Leibshultz, 51 Ind.

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Bluebook (online)
120 A. 481, 276 Pa. 526, 1923 Pa. LEXIS 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nusbaum-v-hartford-fire-ins-pa-1923.