Walters v. Great American Indemnity Co.

Memorandum. On the appeal by Great American Indemnity Company, the judgment should be reversed and the complaint dismissed, with costs in all courts. Where the language in an insurance policy is susceptible to more than one meaning, such language should be construed most favorably to the insured [969] (Hoffman v. Ætna Ins. Co., 32 N. Y. 405; Hartol Prods. Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49), so as to reflect that meaning which the insured was led to believe or had reason to believe the language meant at the time he entered into the contract (Herrman v. Merchants’ Ins. Co., 81 N. Y. 184). However, “ We are not to interpret where there is not reasonable doubt concerning what the parties really agreed upon ” (First Nat. Bank of East Islip v. National Sur. Co., 228 N. Y. 469, 472). “ Processes of construction may not be resorted to for the purpose of reading into the [policy] an intention not expressed or legitimately to be implied from the language used when construed in the light of the surrounding circumstances ” (Central Union Trust Co. v. Trimble, 255 N. Y. 88, 93). “ The contract was plain and unambiguous upon its face and the intent of the parties is clearly indicated by the language used ” (Nau v. Vulcan Rail & Constr. Co., 286 N. Y. 188, 198). Unquestionably the loss here resulted from the flow of water from an “ industrial appliance ”. Nothing in the insurance policy indicates that the industrial appliances used in the operation of the insured’s business are not intended to come within the exception. To read such a limitation into the exception would write the exception out of the policy. The appeal taken by the plaintiffs should be dismissed since the judgment was unanimous and they have not obtained leave. Judges Dye, Van Voobhis, Btjbke, Fosteb and Scileppi concur in a Memorandum; Chief Judge Desmond and Judge Fttld dissent and vote to affirm. On appeal by defendant: Judgment reversed and complaint dismissed, with costs in all courts, in a memorandum. On appeal by plaintiffs: Appeal dismissed, without costs.