Liverpool & London & Globe Insurance v. Van Os & Shuster

Cooper, C. J., delivered the opinion of the eourt. The second instruction given for the plaintiffs, and the second for the defendant, announced practically the same rule for, the guidance of the jury in determining what quantity of evidence was required by law to warrant it in finding a verdict for the defendant upon the ground that the plaintiffs had set- fire to the store and burned their own goods. If the rule was erroneous it was invoked as well by the defendant as the plaintiffs, and the defendant cannot assign it for error. By the first instruction for the plaintiffs the jury was told that it should find a verdict for the plaintiffs, unless it believed, from the evidence, that the plaintiffs fraudulently burned the store, but notwithstanding this instruction was given, many others were asked and obtained by the plaintiffs upon .the effect of notice by Bradfield, the agent by whom the policy was delivered to them, that they kept gunpowder in stock, and upon the custom of merchants of their class to keep gunpowder for sale. Thus the jury was first told that the defense set up by the company, that the policy was avoided by the keeping of gunpowder, could not avail, and then it was submitted to it to determine the very question [441] whether it might not avail. This should not have been done, and unless the first instruction was warranted by the facts the judgment must be reversed. The authority of the agent Bradfield seems to have been limited to receiving and forwarding applications for insurance, delivering the policies transmitted to him by the agents at Vicksburg, and receiving and remitting the premiums paid. "We have held that notice to such an agent is not notice to the company. Insurance Company v. Sorsby, 60 Miss. 302. The insurance as expressed on the face of the policy was upon “ the general stock of merchandise, consisting of dry goods, clothing, and groceries.” By a printed clause of the policy it was provided that it should be void if the assured should keep gunpowder without the written consent of the insurers indorsed on the policy. It is contended that keeping* gunpowder in stock (which it is admitted was done) did not avoid the contract; first, because it was the custom of merchants of the class of the assured to keep the same; and, secondly, because gunpowder is embraced in tjie words used to describe the goods insured, and being so included there is a written consent or authority in the face of the policy that it might be kept. From an examination of the authorities cited by counsel and of others we deduce these as the rules of construction of insurance policies. The language where ambiguous is to be construed most favorably for the assured, and where general words of description are used it is competent to show what is included in them in the usual course of business, as what is “ a general stock of merchandise ” or “ such goods as are usually kept in a country store ” or “the stock in trade of the assured,” etc., etc.; where there is a conflict between the written and printed parts of a policy the-written will prevail, and, therefore, where by a printed clause the keeping of certain articles is prohibited but such articles are embraced in the fair import of the words used in describing the goods insured, the keeping of such things does not avoid the policy; but where, by the printed clauses, there is a prohibition as to certain articles, and the written parts of the policy do not embrace [442] the prohibited things, then no usage or custom can be resorted to to add to the terms of the contract an implied permission to deal in the prohibited articles; where, following general words of description of the property insured, there are words of restrictive enumeration, such as “ consisting of,” “ composed of” such or such goods, those things which but for the limited words would have been included in the general description but are not included in the restricting words are excluded. Thus, if in this case the insurance had been upon “ their general stock of merchandise,” the assured might have shown what composed such general stock, and what was understood to be included in^ it by usage and custom, and if “ gunpowder ” was a part of such stock, then it might have been kept by them, although by a printed condition of the policy it was prohibited. But the written clause of the policy insures, not the general stock, but that “ consisting of dry goods, clothing, and groceries,” and these words exclude all things not being “ dry goods, clothing, or groceries.” It devolved, therefore, on the plaintiffs to prove either that the defendant had waived this condition of the policy, or that gunpowder was “ dry goods, clothing, or groceries ” within the fair import of these words as used by the contracting parties, to discover which resort may be had to the usages and customs of trade, by which a narrower or broader meaning may be affixed to them. The witnesses for the plaintiffs did not testify that gunpowder is dry goods, clothing, or groceries, nor that, according to the usages of trade, it is included in such words. The extent of their testimony was that persons keeping such a stock as the plaintiffs kept, a general stock of merchandise, usually kept powder as a part of that general stock. As we have said, this was not the question for inquiry. The inquiry should have been whether gunpowder was included in the words used in the policy describing the stock insured. The judgment is reversed and muse remanded.