Weisenberger v. Harmony Fire & Marine Insurance

The opinion of the court was delivered, January 7th 1867, by Thompson, C. J. It has been often said that a policy of insurance, with its clauses, conditions and stipulations, is the law of the legal relation between the insurers and insured, by which their mutual rights and liabilities are to be understood and measured : 4 Wright 289. In this respect an insurance is like other contracts, liable to be reformed on account of accident or mistake, and set aside for fraud; so a latent ambiguity may be explained by extrinsic testimony, and terms of art, commerce of trade defined by the same process. But it is not an exception otherwise to the rule, that its terms must stand, unless for some of the reasons mentioned, it may be moved from the precise terms written. The proposition below to prove what was meant by the note, “ this policy does not attach to oil in the tanks,” was inadmissible on every principle. It was not written by mistake, inserted by fraud, nor in the least ambiguous. The proposed proof would have made an entirely different thing out of it from what the collocation of words plainly imported, and without the insurers knowing anything whatever but what it did express. Without stopping to discuss this assignment further, we think it is not sustained. Nor do we think the learned judge erred in holding that the lard oil was not included in the policy. We are not sufficiently acquainted with the enclosure to which the policy applied, to say whether it could be fairly included within it or not; but we think it was not included, because it was known in commerce not as “ refined” but as‘ “ lard oil.” The place and circumstances, show very conclusively, that this was not the kind of oil intended by the policy. The place was an oil refinery, devoted to refining petroleum or rock oil; and as there would be sometimes more and sometimes less in quantity on hand, the plan of an open policy was adopted to cover, to a certain extent, the oil as manufactured ; not such oils as were bought to be used in the process of refining oil. These considerations serve to render the conclusion more satisfactory, that it was refined oil of the factory, or oil of the same nature, that was intended to be covered by the policy, and that there was no error in holding the five barrels of lard oil as not within it. There was not a shadow of ground for the claim, that the oil in the cooling and settling tank was included by the terms “ refined oil in barrels.” [445] To hold this an equivalent expression to “ barrels of oil,” would pervert the contract. As the contract of insurance is the agreement or bargain of the parties to it, it is often surprising that so little attention is paid to details. Parties contemplating insurance ought to know, that what they really agree to, courts cannot relieve them from; and they ought to take counsel, or be well assured of their own ability to contract for themselves in this particular, and then to have what is intended clearly defined. This remark is general; not designed for this case ; for we think that the parties to it intended just what the court below said they did; but it is probable that more skilful and thrifty business-men, would have had their insurance in this case, in such form as to have covered the manufactured article, before being barrelled as well as after. This is but conjecture however. As error has not been made manifest in any part of this record, the judgment is affirmed.