Merrick v. Germania Fire Insurance

The opinion of the court was delivered, by Strong, J. There is no error in these records unless it is found [284] in the construction given to the seventh condition attached to the policy. That condition is in these words: “ If, at the happening of any fire, the assured shall have insurance under a floating policy or policies, not specific, but covering goods generally in various places, not designated, and yet within limits which include the property herein insured, such policy, as between the assured and this company, shall be considered as covering any excess of sound value of the subject insured beyond the amount covered by the specific insurances thereon; and to determine the amount for which this company is liable in case of loss, such floating policy shall be considered an insurance on the property to the extent of such excess.” Each of the companies sued in these cases insured to the plaintiffs on stock, tools, steam-engines, &c., contained in buildings on a lot of ground (describing it) known as the Southwark Foundry. Another company had previously taken a risk on machinery manufactured, unmanufactured and materials for the same, in one of the buildings on the lot known as the erecting-shop. The plaintiffs also obtained other insurance on the subject of insurance in the defendants’ policies, and also obtained policies from still other companies on the machinery made, and being made and intended for the steamer Chattanooga, contained in the various buildings, but chiefly in the building known as the erecting-shop. A loss having occurred, the defendants contend that in adjusting it between the several insurers, the specific policies, namely, those that cover specially part of the property insured, must be first exhausted, and that their policies not being insurances of stock, &c., in any one building, but in all the buildings upon the lot known as the Southwark Foundry, cover only the excess of sound value remaining after deducting from the entire loss the amount of the specific policies. If this is so, it is because of the seventh condition of their contract above quoted. But that condition, as we understand it, contains no such restriction of the generality of their engagement. It certainly does not in express terms. The condition is exceedingly obscure, and it is difficult to determine, satisfactorily, what was intended by it. One would think it easy enough to frame a clause restricting the general liability of a contract of insurance to a limited liability for so much only as might not be covered by a specific insurance of part of the subject. If it was designed that in case any one of the buildings or goods in any one of the buildings of the Southwark Foundry should be insured by other underwriters whose policy might not cover the whole subject insured by these defendants, then only so much should be insured by the defendants as to cover the loss beyond the sum thus insured by others, it should have been clearly expressed. And if the defendants have left the existence of such a design doubtful by using obscure language, they [285] ought not to complain if they be held to that construction of their language which is most unfavorable to them. In regard to this condition many questions may be asked which it is impossible to answer with certainty. What is a floating policy ? Is it defined in the condition ? If so, it is a policy larger than either of those which these defendants issued, for the limits within which the goods insured by it do include the property insured by the defendants. Or is it a policy on goods generally, without any designation of the place where they may be ? If so, the policies of the defendants are not floating policies, for they are designatory of place. Other questions might be asked, but we are not called upon to determine what the condition does mean. It is enough if it does not exempt the defendants from a liability which would exist without it. It seems quite evident that when the defendants spoke of floating policies, they referred to some other policies than their own. They are spoken of as distinct, and it is such floating policies of other underwriters that are to be considered as insurance upon the property to the extent of the sound value of the subject insured — beyond the amount covered by the specific insurances thereon. We do not feel warranted, therefore, in holding that the seventh condition of the defendants’ policies confine their liability to the excess of loss above that covered by what are called specific insurances. The court then was not in fault in the instruction given to the jury. The 2d assignment of error was not much pressed at the argument, and we think it not sustained. Judgments afiirmed. Woodward, C. J., dissented.