Harper v. . New York City Insurance Company

Comstock, Ch. J. The jury found, in answer to interrogatories specially submitted to them, that the use of camphene, in the manner proved, was according to a general and established usage in the printing and book business, as carried on by the plaintiffs, and that such use was necessary in that business. In the written part of the policy the subject of insurance is described as the plaintiffs’ printing and book materials, stock, &c., “privileged for a printing office, bindery,” &c. The language is identical with that contained in the policy which was before us in the case of Harper v. The Albany Insurance Company (17 N. Y., 194). We there held, for reasons which need not be repeated, that the insurers were liable for a loss occasioned by the necessary and customary use of camphene in the plain *443 tiff’s business, although the use of that article was prohibited in general terms in the printed conditions annexed to and forming a part of the contract. In that case, the printed form of the policy, if construed without reference to the subject of insurance as described in the written part, proscribed the use or presence of camphene for any purpose. In this case the printed condition declares in substance that if the article is .used and a loss is occasioned thereby, the insurer will not be liable. There is no other distinction between the two cases. And this distinction is not one of principle. In the case cited, we found no irreconcilable repugnancy between the written and printed clauses of the contract. If such a repugnancy had been discovered, then, as the court said, the printed form must yield to the more careful and deliberate written language of the parties in describing the subject of insurance at the very moment when the policy was issued. But it was considered that each clause might take effect. By insuring the plaintiffs’ stock with the privilege of a printing office and book bindery, the use of such materials, including camphene, as were necessary in that business, was allowed. Otherwise, the contract was a mere delusion. But the restraining clause might, nevertheless, have its full effect upon the use of camphene for the purposes of light and for all purposes beyond its necessary connection with the stock and business insured. So, in this case, camphene must be considered as a part of the stock insured. Its continued presence and use were allowed, because the business which required its use was expressly privileged. The printed condition, exempting the underwriters from loss when occasioned by this article, should, therefore, be construed "as referring to uses not within the privilege thus granted. Otherwise, the two parts of the contract are repugnant to each other, and the printed form must yield to the deliberate written expression. An insurance upon the plaintiffs’ stock and business, to be of no effect if a loss should be occasioned by the combustion of an article constituting a part of that stock, and necessarily used in the business, would, I think, be an anomalous undertaking. Undoubtedly, such a contract might be *444 made. .A policy can be so framed as to allow the presence of a dangerous article, and even so as to insure its value, while, at the same time, it might exempt the insurer from loss if occasioned by the presence or use of the article. But I think it would need very great precision of language to express such an intention. Where camphene, or any hazardous fluid, is insured, and its use is plainly admitted, the dangers arising from that source are so obviously within the risk undertaken, that effect should be given to the policy accordingly, unless a different intention is very plainly declared. And such an intention, instead of being hid away in printed forms, remote from the principal contract, ought to be found in the deliberate expressions which are made use of at the time when the contract is entered into. Without doubt, all the printed conditions and specifications annexed to a policy are, or at least may be, a part of it. But they relate to insurance in general, as practised by the underwriter; and upon, or within, those forms, the parties to each policy actually issued write their own particular intention. The plain meaning of the written part should, therefore, prevail, and other clauses must yield, if repugnant, or they must be construed so as to avoid a conflict of intention. In this casé, I think, the perils of keeping and using camphene were insured against, so far as the keeping or use of it was permitted at all, and that the clause which exempts the insurer from liability should be understood as applying to the presence of the article under other conditions. The judgment should be affirmed. .Davies, Weight, Bacoh, and Welles, Js., concurred.