Appleby v. . Astor Fire Ins. Co.

The plaintiffs were insured by the defendant on merchandise, hazardous and not hazardous, contained in brick store No. 360 Pearl street, in the city of New York. The insurance was in fact effected upon the plaintiff's stock of tobacco and snuff, in the building named, which they held under a lease containing a provision that the premises were not to be used or occupied for any business deemed extra-hazardous by insurance companies on account of fire. The plaintiffs manufactured tobacco in New Jersey, had their place of business in Water street, New York, and occupied a part of the premises in Pearl street for the purpose of storing manufactured tobacco and snuff. At the time the policies were issued, the plaintiffs were the lessees of the entire building, *Page 257 which seems to have been one of five stories, and they at some time occupied the third floor and the basement, but at the time of the fire were only occupying the basement with their stock of tobacco. In April, 1863, while the policies were in force, the plaintiffs permitted Sawin Osgood to come in and occupy the first, second, fourth and fifth floors of the building in their business, and they were in such occupation when the fire occurred, and it happened from the explosion of some combustible material they necessarily employed. Sawin Osgood manufactured chairs, or partially did so, in Gardner, Massachusetts. The business which they introduced into No. 360 Pearl street was the finishing of chairs which had been manufactured in the rough at their manufactory in Massachusetts; they were shipped in an incomplete state, in boxes, and when they reached 360 Pearl street, New York, the boxes were opened; the shavings in which they had been packed were scattered around loosely, and the fragmentary parts of chairs were in various forms fitted together and made perfect for sale. In the performance of this work from eight to ten men were constantly employed, with various tools and implements, and, among other necessary things, glue, paint, alcohol, varnish, and benzine; requiring four or five barrels at a time. In the ordinary course of the business in which Sawin Osgood were engaged, the alcohol lamp, used for heating glue, with which different parts of a chair were put together, exploded, and the fire ensued in consequence. The contract of insurance provided that, "if the premises at any time during the period should be used for the purpose of carrying on therein any trade or occupation or for keeping therein any articles denominated hazardous, or especially hazardous in the second class of the classes of hazards annexed to this policy, from thenceforth and so long as the same should be so used, this policy shall be of no force or effect." And it was further provided, that "If during the existence of the policy the risk shall be increased by any means within the control of the assured, or by the occupation of the premises *Page 258 for more hazardous purposes than are permitted by this policy, this policy shall be void." Among the articles denominated hazardous or specially hazardous in the second class of the classes of hazards annexed to the policy, were "oil, alcohol, painters' stock, turpentine, spirits of turpentine and varnish." And among trades denominated specially hazardous in the second class of hazards were "all workshops, manufacturing establishments, trades and mills not above enumerated as hazardous or extra-hazardous." No previous mention had been made of the trade or occupation of "chair finishing." I am of the opinion that, upon the undisputed facts, under the provisions of the policy, the plaintiffs were not entitled to recover, and that a verdict should have been directed for the defendant. The terms of the contract between the parties must control the result; and if unambiguous, neither courts nor juries can alter or modify its provisions or in effect make a new one. When the insurance was effected, the plaintiffs occupied a part of the building for the storage of tobacco and snuff. This use of the building does not appear to have required the presence of any of the combustible materials by the use of which the subsequent firo actually occurred. I understand it to be conceded by the counsel for the plaintiffs, that if the operations of Sawin Osgood are to be considered as a workshop or a manufacturing establishment, the plaintiffs were not entitled to recover, and the claim of the plaintiffs to recover is based solely on the ground that all they did, or caused to be done, came within the description of a stock of cabinet-ware, and that the use of articles ordinarily prohibited, but necessary and incident to such business, did not avoid the policy. It is true, that in the first class of hazards, under the designation of "Extra hazardous, No. 1," "cabinet-ware" is named. It might have been suggested on the trial, I think, with some force, that as the insurance was on "merchandise hazardous and not hazardous," "extra-hazardous" goods were not embraced, and, therefore, that even a stock of "cabinet-ware" was not insured. But *Page 259 as this question seems to have been regarded as unimportant in the court below, it is not necessary to give it consideration here. Conceding, therefore, that a stock of "cabinet-ware" was covered by the terms of the policy, I am not able to discover anything in the contract of insurance that permitted the plaintiffs to allow Sawin Osgood to occupy any part of the premises for purposes such as the evidence disclosed. It appears to be very clear that in the first class of hazards, no process of manufacture or completion of any article therein named was contemplated. It obviously has reference to the mere keeping, or storage of the article named, in a finished state. If otherwise, the subsequent restrictions of the policy against various trades and their incidents, and the presence of combustible materials are of no significance. It must be admitted that there is, of necessity, a large difference in the risk of insuring against fire, any article completed and finished, stored in any building, and the same article in an unfinished state, while undergoing in various forms, the process of completion. In the one case, the thing might appear very harmless, and in the other, it might be quite different; and it seems that in the policy we have to consider, the distinction is very apparent and presents no question for a jury. I do not agree that it is to be sent to a jury to say whether or not a lot of disjointed chairs in an unfinished and incomplete state is a stock of "cabinet-ware," in the sense in which those terms are employed in the policy. They plainly were not, and the defendant was entitled to judgment. (Pindar v. The Continental Ins. Co., 38, N.Y., 364; Lee v.How. Ins. Co., 3 Gray, 592; Macomber v. Same, 7 id., 257;Whitemarsh v. Charter Oak Ins. Co., 2 Allen, 581; Richards v. The Protective Ins. Co., 30 Maine, 373.) It is presumed that the evidence offered by the defendant to show that the risk was increased by the use to which Sawin Osgood devoted the premises, was ruled out upon the principle that the trade of "chair finishing" meant a stock of "cabinet ware," and that, therefore, the additional risks incidental to the keeping of a stock of cabinet-ware were agreed *Page 260 to be borne by the insurer. I am by no means clear that, in any view of the case, this evidence should not have been received, but as I prefer to dispose of the case upon the other ground, it is not necessary to discuss that question. The judgment must be reversed and a new trial granted, with costs to abide the event. All concur. Judgment reversed.