Russell v. Manufacturers' & Builders' Fire Insurance Co. of New York

Mitchell, J. When the policy in suit was issued the insured premises were vacant and unoccupied. The printed part of the policy contained a condition that the entire policy should be void if there should be kept, used, or allowed on the premises benzine, gasoline, etc., or other explosives. But at the time the policy was issued a typewritten slip was attached to and made part of it, providing that the premises were “privileged to be occupied for hazardous and ex-trahazardous purposes.” Afterwards, and at the time of the lossfor which it is sought to recover, the premises were occupied as a paint factory, in which benzine and gasoline were kept and used in the manufacturing of paints. Defendant’s contention is that the policy was avoided by keeping and using benzine and gasoline on the premises. It concedes that the terms “hazardous” and “extrahazardous” have no technical meaning, and must be taken in their ordinary and popular meaning of dangerous and extradangerous; also that the general privilege of occupying the premises for “hazardous” and “extrahazardous” purposes would, if taken by itself, authorize their occupancy for a business in which benzine and gasoline are kept and [413] used; but its contention is that the general written privilege is qualified and limited by the special printed prohibition, so that the policy should be construed as meaning that the premises might be occupied for any hazardous or extrahazardous purpose which did not include the keeping or using of benzine, gasoline, etc., or other explosives. An examination, of the policy shows that no uses of the premises were prohibited as hazardous or extrahazardous except those specified in the printed condition referred to. Therefore the written clause granting the privilege to occupy the premises for hazardous purposes had no office to. perform, unless to change or modify the printed provision relating to the same subject. Consequently, if defendant’s contention is to prevail, the policy means exactly the same as if the written part had not been incorporated into it. Had the written slip contained specific permission to use the building as a paint factory, then clearly, within the doctrine of Phœnix Ins. Co. v. Taylor, 5 Minn. 492, (Gil. 393,) it would have controlled and modified the printed part so as to permit the keeping and use of benzine, gasoline, or any other. article ordinarily kept and used in the manufacture of paints. In the present case, although the premises were unoccupied, a future occupancy, and for a hazardous or extra-hazardous purpose, was contemplated, but what particular purpose was then unknown. Hence the parties contracted that they might be used for such purposes without limitation; that is, for any hazardous or extrahazardous purpose. While doubtless there are many such purposes that do not involve the keeping and use of benzine and gasoline or other explosives, yet hazardous or extrahazardous purposes do include those in which such substances are used, and which are therefore included in the general permission contained in the written part of the policy. Defendant asks that this permission, which is unlimited in terms, be qualified and limited by adding thereto, by implication, “except as hereinafter provided.” On the same line of reasoning the court should in the Taylor Case, supra, have construed the policy as permitting the keeping of any goods usually kept in a general retail store except such as were prohibited by the printed part of the policy. We are unable to see the [414] •.force of defendant’s argument, based upon an attempted distinction between a permission limited to a particular specified purpose of a ■hazardous nature, and a general permission to occupy for any hazardous purpose, without specifying them. If the former would be, as to the specified purpose, inconsistent with the printed part of the policy, the latter would be equally so as to any and all hazardous purposes. (Opinion published 52 N. W. Rep. 906.) In fact, as already suggested, it is necessary to so construe the ■written part of the policy in order to give it any effect whatever; for the only purposes which are prohibited by the printed part are those which, according to defendant’s construction, are to be excepted irom the operation of the written part. We are of opinion that there is an inconsistency or want of harmony between the written and the printed part of this policy, and, .according to a familiar rule, the former, as more expressive of the intention of the parties, must control; and according to the written part, as we have construed it, the use to which these premises were .bemg put at the time of the loss was permitted. Order affirmed.