Sun Insurance v. Jones

Mansfield, J. 1. Insurance-Keeping books The only contention made by counsel for the appellant on the first ground of defense is that the store was not “actually open for business ” at the time of the fire. And it is argued that the book-keeper, who was last in charge of the store on the night it was burned, had left it locked and unoccupied, and it could not therefore have been at any later time open for business. But the facts as found by the court are, that the book-keeper, who was also a salesman, was engaged in writing up the record of the day’s business, a duty which the policy itself enjoined, when, passing out of the building by a window, he went into an adjoining store, expecting to return in a short time and complete his work. He had been absent only a few moments when the fire broke out; and there was nothing in the manner or occasion of his leaving the store to indicate that anything was intended beyond a brief intermission in his labor. No importance is to be given to the fact that the door was locked. The evidence explains that it was the custom to keep it locked after night to prevent the intrusion of persons whose presence was not desirable. The building having sash doors, customers could see from its being lighted that the store was open for business, and on knocking at the door they were admitted. This was the usual method of keeping the store “open” at night. Nor can the lateness of the hour aid the theory of the defense, for it is shown that it was the custom of merchants in that section of the country to continue the business of the day until 10 or 11 o’clock at night; and that it was necessary to enter the transactions of each day in the books before they were locked up for the night. The policy in effect recites the fact that the plaintiffs kept a country store, and the parties are presumed to have contracted with reference to the necessities of such a business and the usages which prevail in its management. Jones v. Southern Ins. Co., 38 Fed. Rep., 19. It is not contended that the store had been actually closed for the day before the book-keeper left it. And we think that, if it was then open within the meaning of the policy, there is no avoiding the conclusion that it would remain so until the transactions of the day were recorded in the books, or until some act had been done indicating a purpose to close it. In the case cited above the precise question now being considered arose and upon the same facts, the plaintiffs and the property insured in that case being the same as in this. And the court there held that the store was “actually open for business” within the meaning of the iron-safp clause, when the fire broke out. The reasoning by which that ruling is supported appears to us conclusive. We therefore hold that the finding of the court below on the issue formed by the first defense is sustained by the evidence, and that it was not error to refuse the first declaration of law requested by the defendant. Houghton v. Ins. Co., 8 Metcalf, 114; Daniels v. H. R. Ins. Co., 12 Cushing, 416; Turley v. N. A. Ins. Co., 25 Wendell, 374. 2. Limitation -Date of loss. 2. The second defense is that the plaintiff’s action was not brought within one year after the date of the fire. It was commenced within one year after proof of the loss was made, and the remaining question to be decided is, whether the time within which the policy required the plaintiffs to sue should be computed from the day on which the fire occurred, or from that on which the loss it occasioned became -due and payable. The 18th clause of the policy fixing the period of limitation is as follows: “All claims under this policy are barred, unless prosecuted within one year from the date of loss.” By another clause it was provided that payment of the loss insured against should “ be made in sixty days after the loss shall have been ascertained and proved.” If the term “loss,” in the eighteenth clause is to be taken to mean the destruction - of the property, then it evidently does not mean what the same word implies in the provision fixing the time of payment; for in the latter, the “loss” is described as something to be ascertained—to be proved and paid— words which apply more appropriately to the amount of •damages which the assured has sustained by the fire than to the fire itself. The loss to be ascertained and proved is also that contemplated by the eighth, tenth and twelfth conditions or clauses of the policy. By the tenth clause the loss on goods and merchandise is to be paid for at a value “ to be ascertained by experts mutually appointed.” Again in another clause it is stipulated that the company shall be liable only for three-fourths of the loss not exceeding the sum insured, “ the other one-fourth to be borne by the assured.” Here also the term “ loss ” is plainly used in the sense of pecuniary damages. Now, the limitation ■clause declares that all claims shall be barred “unless prosecuted within one year from the date of loss.” Standing alone this provision would seem to give the full period of one year in which claims may be prosecuted. But the clause is wholly ineffectual to accomplish that object, if the ■ appellant’s construction be adopted, since no cause of action accrues in any case until the expiration of sixty days, and the time of payment may be further deferred by delays which may occur beyond the control of the assured, by an exercise of the right reserved to the company to have the loss ascertained and adjusted by experts. It is at least a possible thing that the whole period of limitation might thus elapse before the right to sue would accrue. In that ■event the assured would, without fault on his part, be cut off from any remedy whatever. A construction of the contract which would permit such a result cannot, it is needless to say, be entertained. Barber v. Fire and Marine Insurance Co., 16 W. Va., 658. This brief comparison of the several clauses of the policy is sufficient to show that the meaning of the limitation clause is n,ot free from doubt. And in such case a familiar rule is applicable which requires us to construe it most strongly against the company. 2 Wharton, Cont., 670; May on Ins., secs. 175-179. As to the construction to be given the limitation clause of a policy, where it is drafted in language similar to that presented by this instrument, the adjudicated cases are not in harmony, but the weight of authority which they furnish is, we think, to the effect that the period of limitation begins to run from the day on which a cause of action accrues to the assured. Levy v. Va. Ins. Co., 9 Insurance Law Journal, 113 ; Hay v. Star Fire Ins. Co., 77 N. Y., 242; Steen v. Niagara Fire Ins. Co., 89 N. Y., 315; Mayor v. Hamilton Fire Ins. Co., 99 N. Y., 45; Ellis v. Council Bluffs Ins. Co., 64 Ia., 507 ; Spare v. Home Mutual Ins. Co., 17 Fed. Rep., 568; Vette v. Clinton Fire Ins. Co., 30 Fed. Rep., 668. The text writers, so far as we have had access to their works, also state the rule to be that the limitation will be ■construed to run from the time when the loss becomes payable, and not from the date of the fire. 2 Wood on Insurance, p. 1029; May on Insurance, sec. 479; Bacon on Benefit Societies, sec. 446. The plaintiff’s action was not barred, and the judgment is affirmed.