Carlin v. Western Assurance Co. of Toronto, Canada

Ritchie, J., delivered the opinion of the Court. The policy of assurance, upon which the appellant, as plaintiff below, seeks to recover, was issued to him by J. — 523 — S. Metzgar, agent of the company. If describes the property of plaintiff insured as “his steam flour mill, fixtures or machinery, viz., middling purifier, belting and machinery to run the same, ] and other specified articles, ] all contained in a two story frame, shingle roof building with stone basement, situate well detached in Frosthurg, Md.” There are sundry provisions in the policy, the violation of which works a forfeiture of the insurance. The particular conditions for the alleged violation or non-observance of which the defendant claims to be discharged from liability are, first, those relating to precautions against fire, which are as follows: “If it, [the premises mentioned,] be a manufacturing establishment, running in whole or in part over, or extra time, or running at night; , * or if in said premises there be kept gunpowder, fire-works, nitro-glycorine, phosphorus, saltpetre, nitrate of soda, petroleum, naphtha, gasoline, benzine or benzine varnish, or there he kept or used therein camphene, spirit gas or any burning fluid, or any chemical oils, without written permission in this policy, (excepting the use of «dined coal oil, kerosene, or other carbon oil for lights, if the same is drawn, and the lamps filled by daylight,) then, and in every such case, this policy shall become void:" secondly, those defining’the authority of the company’s agent to vary the contract of insurance, and fixing the mode in which a waiver of any of the terms or prohibitions of the policy may he affected; which are contained respectively in the sixth and seventh clauses of the instrument, viz., “ f>. It is further understood and made part of this contract, that the agent of this company has no authority to waive, modify or strike from this policy any of its printed conditions, nor is his assent to an increase of risk, binding on the company, until the same is indorsed in writing on the policy, and the increased premium paidnor in case this policy shall become void by reason of the viola — 524 — tion of any of the conditions thereof, has the agent power to revive the same, and that a new policy intended to replace any policy so made void, shall be of no effect until its actual issue and delivery thereof to the assured, any contract by parol or understanding with the agent to the contrary notwithstanding. “ 7. The use of general terms, or anything less than a distinct specific agreement, clearly expressed, and indorsed on this policy, shall not he construed as a waiver of any printed or written condition or restriction therein.” The proof shows, that, outside and standing against the building described as that containing the .machinery insured, was a small structure in which were placed the engine and boiler which supplied the power for running the mill. This structure was hut one story, of the height of the stone basement of the other, and having a shed roof. The engine and boiler were not included in the machinery covered by the policy, nor any articles contained in the engine house. About midnight of the 13th June, 1878, both buildings, with all their contents, were destroyed by fire. The cause of this fire, which originated in the main building, on the side opposite from the engine-room, is unknown. The evidence further shows, that the mill, in which the machinery was located was sometimes run at night between the dates of issuing the policy and the fire, but not the night on which the fire took place; that when the mill was run at night the plaintiff used for lights lard oil and candles, the oil so used being of the kind used by the miners in the Cumberland coal region, the plaintiff filling his lamps at night as occasion required, when the mill was run at night; that the plaintiff used petroleum, which from the testimony is a natural lubricating oil, for the purpose of oiling the machinery of the mill, which he bought in quantities not exceeding one barrel at a time, and that said oil was kept in such barrel in said engine-room. — 525 — The plaintiff offered to prove by J. S. Metzgar, the agent'of the defendant, who procured the insurance and delivered the policy, that he was aware when the policy was issued that the mill had been previously sometimes run at niglit, and also was aware that it was sometimes run after night after the insurance was effected; that he had authority to endorse on the policy the right of the plaintiff to run said mill at night, and would have done so if he had thought it necessary under the policy, and said Carlin had requested him so to do. This offer of proof having been denied, its rejection is the subject of plaintiff’s first exception. In this ruling we fully concur with the Court below. The policy itself, in the clause quoted above, makes it part of the contract that no modification of the printed conditions by the agent shall he binding upon the company until the same is endorsed in writing on the policy, and the increased premium" paid; nor, in case the policy becomes void from violation of its conditions, shall the agent have power to revive it by any parol agreement with him. A further objection to the offer is, that the understanding of the agent of what lie thought was necessary or not under the policy could not he received to vary its written terms. The instrument must speak for itself. The right of the plaintiff to run his mill at night depends upon whether the mill was a “manufacturing. establishment;” and, unless what the policy meant in using this term was the subsequent conversion of -the premises into a manufacturing establishment other than or of a different character from what it then was-, — and the appellant seems to have made no such point, — this was simply a question of fact to he left to the jury, and it was properly submitted in defendant’s fifth prayer. But what is tobe deemed a manufacturing establishment; or, in other words, what is the signification of the verb to manufacture, is for the Court to define. The counsel for — 526 — appellant contended that making flour from wheat, reasoning from the etymology of the word, and the nature of the process, is not manufacturing. But whilst, from its derivation, the primary meaning of the word “ manufacture” is making with the hand, this definition is too narrow for its present use. Its meaning has expanded as workmanship and art have advanced ; so that now nearly all artificial products of human industry, nearly all such materials as have acquired changed conditions or new and specific combinations, whether from the direct action of the human hand, from chemical processes devised and directed by human skill, or by the employment of machinery, which after all is but a higher form of the simple implements with which the human' hand fashioned its creations in ruder ages, are now commonly designated as “manufactured.” Burrill defines “to manufacture,” “the process of. making a thing by art,” and cites, Butler, J., in 2 H. Bl., 463, 411. Abbott gives its meaning as “ whatever is made by human labor, either directly or through the instrumentality of machinery.” The definition in Webster is, “To make or fabricate from raw materials by "the hand, by art or machinery, and work into forms convenient for use.” Worcester has in substance the same definition. A case directly applicable, is- that of Schriefer vs. Wood, 5 Blatch., 215, in which animal charcoal, produced by the process of burning bone, in the same manner that wood is "exposed to the action of fire, to produce common charcoal, and bone-dust produced by pulverizing- or grinding bones, are decided to be “manufactures of bone.” The question here considered, was involved in that case, and the decision accords with the view we have expressed. We think, therefore, that plaintiff's flour mill, driven as it was by steam, and furnished with a middling purifier, bran-duster, belting and other machinery, was clearly a “ manufacturing ’ establishment. ” — 527 — In this connection, wo would observe, that plaintiff’s second prayer was properly refused. The proposition of that prayer is, that the words “manufacturing establishment,” are to be applied to the articles of machinery insured, and not to the building or premises in which they were contained. In our opinion, they obviously relate to the latter. The granting of defendant’s first prayer not having been excepted to, although referred to in the argument, is not open to our consideration. The remaining three prayers of the defendant, in connection with plaintiff’s second and third prayers, present the grounds upon which this appeal is decided. They relate 'to the nature of the substances used by the plaintiff for illuminating purposes, and to the presence of a certain quantity of petroleum in the engine room of the mill. In our view, none of the lights used in the mill, come within the specification of articles forbidden for that purpose by the policy; and consequently, it is immaterial whether the lamps were filled by daylight or not. On this point, the prohibition is in these words: “ or there he kept or used therein camphene, spirit-gas or any burning fluid or any chemical oils, without written permission in this policy, (except the use of refined coal oil, kerosene or other carbon oil for lights, if the same is drawn, and the lamps filled by daylight,) then, and in every such ease, this policy shall become void.” The defendant’s construction of this condition is, that the use of any kind of material for illumination, but those enumerated in the qualifying or excepting clause recited, is a violation of the policy. We do not so understand it. After forbidding the keeping on the premises of gunpowder, nitro-gyleerine, petroleum and other similar articles of an explosive or highly combustible character, the prohibition proceeds, as stated above, to enumerate other articles, used for illuminating purposes, equally known to he especially dangerous, — 528 — "because highly inflammable and explosive, following, however, with the reservation, that certain other kindred articles, also recognized as dangerous, but of a somewhat lower degree of inflammability, may be used, provided the filling of the lamps is done in the day-time. This is evidently a mere relaxation of the stringent precaution, or a privilege for the employment of certain hazardous substances, conceded on the score of convenience, or practical necessity, and not intended as a restriction to their use alone to the exclusion of such others as are manifestly safer. The danger sought to be averted, is of setting fire to the premises; and the use of articles free from the dangerous properties of those permitted, and therefore less objectionable, is not within the reason of the prohibition. The filling of the lamps by daylight, is required evidently to guard against the ignition to which the substances specified are liable, from their volatile nature, on contact with or nearness to the light necessary to be used after nightfall, in drawing them and pouring them into the lamp. To this category, plainly belongs “burning fluid,” one of the substances named; and which is not from the context, or the reason involved, as well as from its nature as popularly and commercially known, to be taken to embrace any and all fluids that may be made to burn,, without reference to the appliances necessary to cause them to give light or their inherent liability to take fire. In no proper sense, therefore, do we consider that the use of candles, or such oil as the plaintiff filled his lamps with, are within the contemplation of 'the clause in question. As this conclusion is at variance with the propositions presented in defendant’s prayers, there was error in granting them. The defendant’s second prayer must also be pronounced errroneous, because, as we construe the term — “ the premises where the insured property was situated,” the barrel containing the petroleum used for lubricating purposes, was — 529 — not kept therein. The defendant assumes, that the small house or engine-room, in which the barrel was placed, is included within the meaning of the words “said premises,’’ employed in the policy. Although, in a general sense, the engine-room was undoubtedly part of the milling establishment, it is not embraced in the description of the property with reference to which the words “ said premises ” are used. The insurance was not effected upon the buildings at all, hut upon certain portable machinery. In desciibing what machinery is the subject of. the risk, reference is made to the building which contained it, merely for its more certain identification. This building, which was the larger one, is incidentally but accurately described for this purpose. So part of the description of this building is applicable to the dimensions or appearance of the engine-room. And the latter is of necessity excluded ; because the object being only to describe the building in which the machinery insured was contained, and none of this machinery being in the engine-room, there was no reason why the engine-room should be described, bxxt a very obvious one why it shoxild not. ' The building, therefore, that was described antecedently to the use of the words “ said premises,” is the only one to which they can he taken to relate. But, even had it appeared from the policy that the engine-room was included in the description of the premises, the keeping of the petroleum therein, under the circuxnstances shown, althoxxglx it is among the list of articles forbidden to he kept, would not, in our opinion, have vitiated the policy, if evidence were introduced showing that it was the appropriate and customary article used in the plaintiff \s trade for lubricating machinery, and that he had kept it. on tlxe premises for that purpose only, and in a reasonable and prudent manner and quantity. As the defendant knew when it issxied the policy, that it was insuring machinery that was part of and essential to the — 530 — equipment of defendant’s steam flour mill, and that such a mill could not be operated except by machinery, it must be supposed to have contracted with reference to what was a necessary and ordinary incident to the running of such machinery. An indispensable requisite to machinery in motion is its lubrication ; and the necessity for having at hand such material as is shown by the common experience of those in the business to be adapted to that purpose) must be presumed to have been contemplated by the contracting parties. If that material, in running a steam flour mill, is petroleum, it cannot be supposed that the prohibition against keeping petroleum extended to the necessary and proper use of it as a lubricating oil, but applied only to its being kept in .the sense of storing it, or for commercial traffic, or, at least, in some way other than its use, in a careful manner for the-purpose of lubrication. Where the contrary is not expressly made to appear, it is not to be presumed, that when an insurance is effected with reference to an established and current bush ness, whose protection is really the object of the insurance, that such a narrow .and stringent construction of the provisions of the policy was intended as will necessarily cause its serious embarrassment or suspension. That this is the correct rule in construing policies of insurance such as was issued to the plaintiff, we consider well settled. Among the authorities in its support, we refer to the following cases as peculiarly applicable, because growing out of alleged forfeitures of insurance in connection with inflammable substances identical with those pertaining to this controversy : Harper, et al. vs. The Albany Mutual Ins. Co., 17 N. Y., 194; Bryant vs. Poughkeepsie Mut. Ins. Co., Ib., 200; The Citizens’ Ins. Co. vs. McLaughlin, 53 Penn., 485 ; Williams vs. Fireman’s Fund Ins. Co., 54 N. Y., 569; See also Whiteford’s Case, 31 Md., 219. It follows from the conclusions at which we have arrived, that not only should the second, third and fourth — 531 — prayers of tire defendant have been rejected, but the third prayer of the plaintiff should have been granted; and that the judgment of the Circuit Court must he reversed and a new trial awarded. (Decided 3rd February, 1882.) Judgment reversed, and neio trial awarded.