Phœnix Insurance v. Taylor

By the Court. Flandbau, J. The policy of insurance in this case was an ordinary printed form. The blanks were — 501 — filled, creating an insurance upon tbe following described property : “ Five thousand dollars on Ms stock of goods, consisting of a general assortment of dry goods, groceries, crockery, boots and shoes, and such goods as are usually kept in a general retail store, &c.” The policy contained printed conditions of insurance, also printed classes of hazards, arranged under the heads of “ Not hazardous,” “ Hazardous, extra hazardous, and memorandum of special hazards.” It was stipulated in the printed part of the policy that if the premises in which the insured articles were, should be used for the purpose of carrying on or exercising therein any trade, business or vocation denominated hazardous, or extra-hazardous, or specified in the memorandum of special hazards, or for the purpose of storing therein any of the articles, goods or merchandize, denominated hazardous, extra-hazardous, or included in the Memorandum of special hazards, except in the policy specially provided for, or afterwards agreed to, by the Company, in' writing, to be added to, or endorsed on the policy, the same was to be void. ' Among the goods denominated hazardous and extra-hazardous, were many, comprehended in terms in the articles specially insured, such as “ grocers’ stock,” “ sugars,” “ boots and shoes,” &e. Part of the memorandum of special hazards was in these words : “ MEMORANDUM OF SPECIAL HAZARDS.” “ Gunpowder, phosphorus and saltpetre are expressly prohibited from being deposited, stored or kept in any building insured, or containing any goods or merchandize insured by this policy, unless by special consent in writing on the policy.” The policy also contained a condition that the insured, on sustaining loss or damage by fire, was to give notice to the Company, or its agents, make oath concerning the value of the property insured, the interest of the insured, and many other particulars usually stipulated for in such policies. Also, a certificate was to be furnished of a magistrate, commissioner — 502 — of deeds or notary public of tbe good faith, &c., of the insured, which matters are called the “ preliminary proofs.” It is unnecessary to refer to any of the other provisions of the policy, as those recited will present all the questions' raised. The instrument did not differ in any material point from, those generally in use. The question made by the Defendant upon the sufficiency of the preliminary proofs is untenable. The acts of the Company constituted a waiver of any defect that existed in the proofs furnished. The local agent of the Company was notified verbally immediately after the fire, and he suggested delay until the arrival of the adjusting agent of the Company. Shortly after, this agent arrived, and made an examination of the boohs and accounts of the insured, expressed himsely satisfied, and took the affidavits of the parties. He told them that no more was required of them, but that he would present the claim to the Company. On the 3d of September following the Company addressed a letter to their local agent, near the scene of the fire, in which they place their refusal to pay the claim upon the sole ground that gunpowder was kept in the building at the time of the fire, and make no objection whatever about the insufficiency of the preliminary proofs. This is a waiver on their part of this condition. Angelí on Ins., secs. 242-5, and cases there cited. There was sufficient proof of the authority of the adjusting agent, besides his acts and declarations, to go to the jury, and their- finding will not be disturbed. It appeared upon the trial that at the time of the fire the insured had among his goods, and kept in his store for sale, a small quantity of gunpowder, somewhere about twenty pounds, and it was further proved that gunpowder is an article that is ordinarily and usually kept in a general retail store in quantities varying from ten to fifty pounds. Keeping an article for retail purposes in a store, is not storing such article within the meaning of the words of the policy prohibiting the storing within the building any articles, goods or merchandize denominated hazardous, extra-hazardous, or included within the memorandum of special hazards. The word storing in such cases has been held to denote “ a — 503 — keeping for safe custody, to be delivered in the same condition as when received, and where the safe keeping is the principal object of the deposit; and not a keeping for the purpose of consumption or sale, in the usual course of the business for which the building was occupied.” O'Niel v. The Buffalo Fire Ins. Co., 3 Comst., 123, 7, 8; N. Y. Eq. Ins. Co. vs. Langdon, 6 Wend., 623. Did the policy authorize the keeping of gunpowder in the store for retail purposes without a special compliance with that clause of the memorandum of special hazards which prohibits it “ unless by special consent in writing on the policy ?” In the interpretation of such instruments, it is always to be kept in sight, that the main portion of the policy, with all its conditions and restrictions, are in a printed form, intended to be sufficiently general to meet all cases, and prevent the necessity of drawing a policy for each risk taken, which would very much retard and embarrass the transaction of such business, and that the written part inserted by the parties, is more immediately expressive of their meaning and intention concerning the contract they are entering into, than the printed portion. There is a rule of construction, therefore, applicable to such instruments, which gives to the written portion of them controlling force, when there is any conflict or want of harmony between it and the printed stipulations. Angelí on Insigo. 11, secs. 14, 15. The words used in this case, as descriptive of the property insured in the written part of the policy, were, “ their stock of goods, consisting of a general assortment of dry goods, groceries, crockery, boots and shoes, and such goods as are usually kept in a general retail store.” These words are broad enough to include any articles that are usually dealt in by persons engaged in keeping a general retail store. They are even less doubtful in their meaning than the words “ stock in trade,”- which when applied to any specified business in a policy of insurance have been held to include not only the materials used, but everything necessary for carrying on that business. 1 Phil. Ins., sec. 489; 2 Hall, 589; 14 Barb., 383. And all such articles are just as clearly embraced in the policy as if each article thus necessarily used — 504 — was enumerated at length. Insurance companies must be deemed to be familiar with the materials necessary to the carrying on any trade or business, the “ stock in trade” of which they insure, and in issuing the policy they must be deemed to have intended to include all such materials in the risk. Harper vs. the Albany Ins. Co., 17 N. Y. Rep. 194, 7, 8. In the case last cited, the insurance was upon the Plaintiff’s “ printing and book materials, stock, paper and stereotype plates and printed books, contained in certain buildings in the city of New York, therein described, and privileged for a printing office, bindery, and book store.” The policy under the head of special rates, contained this provision : “ Camphéne, spirit gas, or burning fluid cannot be used in the building where insurance is effected, unless permission for such use be endorsed in writing upon the policy, and is then to be charged an extra premium.” It appeared that cam-phene was used in the building for the purpose of cleaning the rollers employed by the Plaintiffs in inking their forms of type, wood cuts, &c., and that the fire was occasioned by the act of a plumber engaged in making some repairs, who accidentally threw a lighted match into a pan containing a small quantity of camphene. It was, however, held by the Court that the policy gave the Plaintiffs- the privilege of keeping and using whatever was necessary to conduct the business insured against. See also 22 New York Rep., 441. This. is a much stronger case than the one at bar. Here it is expressly stipulated that the insurance shall cover, besides the specially enumerated articles, “ such goods as are usually kept in a general retail store.” If, as the proof shows, gunpowder was an article usually kept in such stores, it is as much one of the articles insured as if it had been described at length. And both the insured and the underwriters must be presumed to have been aware of the fact that gunpowder was so usually kept when the insurance was effected. In examining the cases cited by the counsel for the Defendant, we do not find any that conflict with the view we take of this policy, nor any that we feel disposed to question. Nor do we by ourAholding in this case, think that we relax any of the well settled rules of construction concerning such instru — 505 — ments, nor weaken tbe effect of tbeir conditions or restrictive clauses. We place our decision, as in tbe case in 11.W. Y. Reports, upon tbe ground tbat tbe article of gunpowder, mentioned in tbe memorandum of special hazards, was as much insured against as tbe dry goods, grocers’ stock, boots and shoes, crockery, &c., which are mentioned under tbe name of “ hazardous,” and equally provided against in tbe policy. If therfe can be a recovery for tbe one, there can be for tbe other. Tbe Court did not err in admitting tbe secondary evidence of tbe transfer of tbe claim to tbe Plaintiff. Tbe loss of tbe instrument was proven sufficiently to allow proof of its contents. “ It should be recollected tbat tbe object of tbe proof is merely to establish a reasonable presumption of tbe loss of tbe instrument, and tbat this is a preliminary inquiry, addressed to tbe discretion of tbe Judge.” 1 Greenleaf, Ev., s. 558. There may be cases where suspicion is cast upon tbe fact of tbe loss, in which great diligence in tbe search would be required, but where no bad faith is attributable to tbe party asserting tbe loss, tbe establishment of a much less perfect case is sufficient. Tbe order denying a new trial must be affirmed.