Lancaster Fire Insurance v. George L. Lenheim & Co.

Mr. Justice Gordon delivered the opinion of the court, May 7th 1879. The policy, which forms the foundation of this suit, covers a stock of “general merchandise of all kinds usually kept in a country retail store.” The insurance is “against all immediate loss or damage as may occur by fire to the property specified, not exceeding the sum insured nor the interest of the assured in the property, EXCEPT as hereinafter provided.” -Then, in immediate connection yith the clause containing the above, comes the condition that the company shall not be held liable, unless by special consent in writing endorsed thereon, for any loss “ where gunpowder, phosphorous, saltpetre, naphtha, benzine, camphene, turpentine, burning-fluid, spirit-gas, crude, .coal or earth oils, or petroleum, or any other articles subject to legal restriction, are deposited, stored, kept or used.” It will thus be seen, that this stock of general merchandise was insured, subject to certain exceptions and conditions in said policy specified, neither can it be justly said that care was not taken to call attention to these exceptions and conditions, for the ■word “ except” is printed in large, and the words “ benzine” and “turpentine,” in small capitals. Besides this, the policy was originally taken in the name of Lewis S. Lenheim, aud was transferred to the plaintiffs, subject to the conditions therein contained; the usual complaint, therefore, of small print and want of notice does not apply in this case. The contract of the parties, then, is very easy of comprehension. The company agreed to insure for Lenheim & Co., this stock of general merchandise of all kinds usually kept in a country store, excepting certain articles therein specified, among others turpentine and benzine, of which it is said, if these are kept the policy shall be void. The policy was accepted under and subject to these conditions, and it is now produced in order to charge the company. May the defendant plead these conditions or may it not ? There is n.o proof of fraud, by it [502] or its agents, whereby it might be estopped, and the conditions are part and parcel of the consideration of the policy. In consequence of them the plaintiffs obtained their insurance at rates less than they otherwise could have done. The excepted articles are extremely dangerous; there is good reason why they should be so 'excepted, and there is, therefore, nothing unreasonable in the condition that the policy should be forfeited upon the wilful violation of that condition. But the court below says, “By the written portion of the policy, the insurance was on the general stock of merchandise of all kinds usually kept in a country store. The prohibitory clause in the policy is repugnant to this and cannot be interpreted so as to prevent a recovery, if you find these articles were part of all kinds of merchandise usually kept in a country store.” Herein, however, is the error in supposing there is any repugnancy between the written and printed parts of the policy. There is certainly no repugnancy in agreeing to insure a general stock of merchandise subject to the condition that gunpowder, petroleum, turpentine and benzine shall not form part of such stock; Surely there is nothing so unusual in reservations and conditions in contracts as to make them the subjects of unusual construction or of extraordinary consideration. Surely, without repugnancy, one may contract for' the sale of a plantation of one hundred acres of land reserving thereout ten acres. Or suppose the contract in controversy to be for the sale of this general stock of merchandise, excepting the articles above mentioned, could any one doubt but that the exception was good ? This case is as nearly like that of the Insurance Co. v. Kroegher, 2 Norris 64, as two cases can be. There, as here, the insurance was upon a general stock of merchandise, but we held that the violation of a condition, which provided that petroleum should not be kept, avoided the policy. In that case all the authorities, now cited by the plaintiffs below, were adduced, and there is nothing now proposed of such a character as to require us to go over the ground anew. We have only to add, that if the plaintiffs’ own evidence was true, they had on hand, at the time of the fire, turpentine enough to avoid the policy. The benzine might, on the principle de minimis, be disregarded, since eight or ten small vials of it was a quantity so trifling as not to be worth attention. As what we have said, in effect sustains all the assignments of error, we need not speak of them seriatim. Judgment reversed, and a venire facias de novo ordered.