Brink & Co. v. Merchants & Mechanics Insurance

The opinion of the court was delivered by Powers, J. This is an action of assumpsit on a policy of insurance upon certain property of the plaintiffs in Springfield, executed by the defendants on the first day of August, 1874, for the term of one year. The policy was written by the defendant’s agents, Johnson & Babbitt, and the property insured subsequently, and during the currency of the policy, was destroyed by fire. No formal written application for .the insurance was made by the plaintiffs; but the agents visited the premises, and from repre — 455 — sentatious made by the plaintiffs on that occasion, and such examination and observation as the agents themselves, made, the policy was executed. The case does not disclose that the plaintiffs made any false representations on that or any other occasion, touching the condition of the property or its present or prospective uses, that are material to this inquiry : but on the contrary, the agents seem to have acted upon their own personal knowledge of all facts material to be known concerning the risk. Much of the discussion, then, that has taken place during the argument, touching the doctrines of warranty and false representation, which mainly apply to those preliminary steps which lead to the execution of the policy, has little application to this case, in view of the verdict found by the jury. The main defence made to the action is based upon the claim that the assured subjected the property to a different use after the execution of the policy than the one named in the policy itself, in violation, as the defendant alleges, of the 1st and 5th conditions of the policy. The language of the 1st- condition, so far as it bears upon this question, is as follows : “ Or if the above mentioned premises shall be occupied or used so as to increase the risk, * * * or the risk be increased * * * by any means whatever within the control of the assured, without the assent .of the company indorsed hereon, this policy shall be void ” ; and the clause in the 5th condition relied upon reads : “• Or if the occupation of such premises be changed from one of the class denominated extra hazardous or specially hazardous, to that of another of the same class, except as herein specially agreed to in writing upon this policy, then, so long as the same shall be so appropriated, this policy shall cease and be of no force.” On the back of the policy are printed three “ classes of hazards,” denominated “ hazai’dous,” “ extra hazardous,” and “ specially hazardous” ; and almost every possible use or occupation to which buildings could be subjected, are specified in one or the other of these classes. The premises in question are described in the policy as a “ new frame manufacturing building and ells and office attached, with fixed and movable machinery therein, situate in Springfield, and — 456 — occupied for the manufacture of toys.'” In looking at the classes of hazards on the back of the policy, there is no mention made of this kind of manufactory, and it must, obviously, fall within the general clause written at the foot of the specially hazardous class. This clause includes “ all workshops, mills, and manufacturing establishments ” not enumerated in the two preceding classes. The “ specially hazardous ” class is the most hazardous class specified. The company, then, must in the first instance have graduated their premium upon full notice that they were assuming the highest grade of risk and responsibility in placing this insurance. The defendant insists that the subsequent use of the property for the manufacture of toy trunks, small nursery chairs, berry and market baskets, table mats, chair stretchers, and mop handles, was a “ change of the occupation from one of the class denominated specially hazardous to that of another,” or, to be more exact, to that of several others. The evident scope of this clause of the fifth condition is, to prohibit a change of the occupation of the premises as a manufacturing establishment for the manufacture of toys, to an establishment for the manufacture of other kinds of goods enumerated in the same class. There is no mention made in this class, or in either of the others, of any manufacturing business that would include the articles relied upon as indicating a change of business. The “ class ” in question specifies every conceivable kind of manufactures, but says nothing of small nursery chairs, table mats,. &c. Now a change of occupation in the sense of this 5th condition, must be a substantial substitution of, one distinct and specially defined kind of manufacturing for that of another equally distinct and defined kind of business; as, a change from a “ coach-maker’s shop ” to a “ cotton-mill,” or a “gristmill ” to a “ rolling-mill,” and innumerable other illustrations that may be made from the large number of specified kinds of manufacturing establishments enumerated in this- class. The making of a single article that in a strict sense is not a toy, is not prohibited by the language of the condition in question, unless .it amounts to .a substantial change .in the business. The — 457 — turning of “ chair stretchers,” a single piece among the great number of pieces that go to make a chair, is not a conversion of the business into a chair manufactory. The words “ chair manufactory,” convey to the ordinary mind the idea of a certain occupation, a business comprehending the processes, machinery, tools, material, and workmanship used and employed in making chairs. Again, it could not be said of the proprietors of a chair manufactory, if in the course of their business as chair makers they should manufacture some small wooden toy, that they had changed their business, — that they had abandoned one kind of manufacturing and converted their premises into another manufacturing establishment. Notwithstanding such incidental use of their machinery and workmén, their establishment is still'a chair manufactory.- It is a fundamental rule in the law of insurance, that the policy shall be construed most strongly against the insurer, and liberally in favor of the assured. The policy is written by the insurers. They use their own language, and surround and barricade their liability under it with such defences as they choose to adopt. Oftentimes their policies, instead of' being simple, intelligible instruments that the average holder can understand and construe, are burdened with a great number of technical stipulations and conditions, buried under ingenious phraseology that reflects great credit upon the draughtsman, but leaves “plain people” to learn its true import after their property is destroyed. Then they are informed that the policy is a mere technical notice of special matter to be given in evidence in answer to their claim for damages. There is-obvious reason for the rule of liberal construction in favor of the man whose legal rights are to be extracted from such a labyrinth of mysticism. The business of this manufactory was not substantially changed during the currency of this policy, and the new business done then was incidental to the general business done when the insurance was effected. We think the “ change of occupation” from “ one of the class ” to another “ of the class ” of hazards which this clause of the 5th condition refers to, is a permanent abandonment of the old business, and the adoption of a new business of like hazardous risk. This answers the only purpose the insurer — 458 — could desire to subserve in requiring notice, that he may determine whether to accept such new risk or not. This construction is abundantly fortified by authority.. Dobson v. Sotheby, 22 E. C. L. 481; Shaw v. Robberds, 6 A. & E. 75; Barrett v. Jermy, 3 Welsby, H. & G. 535 ; May Ins. s. 241. The verdict has settled the question that this alleged change of business did not increase the exposure to fire, and hence it was no violation of the clause of the 1st condition quoted above, and relied upon by the defendant as a bar to this action. But it is said that there was a saw-mill, two planers, and .a blacksmith’s forge on the premises ; that these were used without notice to the company, and that this use ipso facto vitiated the policy. The case shows that the forge was not used at all during the policy. It is not apparent how the insurers have cause of complaint from this source. As to the saw-mill and planers, the exceptions state that the saw-mill was “ used to some extent for the manufacture of lumber for making toys, and to a very small extent for custom sawing,” and that the planer was “ used only for the planing of lumber for use in the manufacture of toys, except for two small jobs o'f planing for the accommodation of a neighbor.” It is clear that this machineiy was employed mainly in the identical business mentioned in the policy, namely, the manufacture of toys; and the very limited use for other purposes, worked no harm to the defendant, and does'not operate to vitiate the policy. May Ins. supra. . Moreover, Johnson & Babbit had fully examined the premises, and knew that custom sawing at the saw-mill, custom planing with the planer, and the turning of mop-handles in the lathes, had for some years been done there, and that the machinery named in the policy was adapted to and had'been used for such purposes. The case shows that these agents in placing this insurance acted upon their own personal acquaintance with the business in past years, and what they observed and learned when on the premises just before writing the policy; all which matters and things so learned and so observed, operated as full notice of all facts material to be known touching the manufacture of mop-handlés, and the occasional use of the saw-mill and planer for custom work ; — 459 — and notice to these general agents was notice to the defendant. And notice so given is just as effectual for all purposes of this inquiry as it would be if given after the execution of the policy. By executing the policy with full knowledge of these facts, the company is estopped from setting up any defence predicated upon the plaintiff’s omission to give them formal notice of these facts. Objection is made that the testimony of Ellis was improperly admitted. The general rule that a witness shall not be allowed to give his opinion upon controverted facts, is subject to some exceptions. In Dean v. McLean, 48 Vt. 412, the plaintiff sought to recover damages from the negligent floating of logs and timber through his mill-dam, flume, and bulkhead by the defendant. On the trial the plaintiff, who was familiar with the running of logs, was asked what would have been a proper way to open the bulkhead and run the logs through. The question called for his opinion, but this court held it proper. Barrett, J., in giving the opinion, says : “ The running of the logs in that stream and through that bulkhead, was not a matter of common knowledge nor of adequate common judgment upon the facts shown by other evidence. The experience and observation of the plaintiff, gave him the grounds and faculty of an opinion peculiar to himself, and not common to men who had no such experience or observation.” Now Ellis had charge of all the business carried on in this manufactory, and had special opportunity to know and did know all the details and processes of the manufacture of these goods, and the liability to fire, and as to these facts within his peculiar knowledge, he was a competent witness. It is further objected that Peirce was improperly allowed to testify to the declarations of Lester. Evidence was given to show that Lester was an agent of the defendant, specially authorized in writing to settle this loss. His declarations in the course of the discharge of such duty, might properly be shown in evidence. This proposition is' too elementary to require the citation of authority. The defandant’s requests to charge, so far as they were material to the law and facts of the case, were properly disposed of in the charge as given. • — 460 — Many other questions were discussed by counsel on both sides in the very able arguments which they submitted, but the disposal of the main questions in the case makes further discussion unnecessary. Judgment affirmed.