A. F. Webb & Co. v. Protec. & Etna Ins.

Napton, J., delivered the opinion of the court. We cannot doubt, that the clause in this policy designed to protect the company against losses by theft is independent of the one immediately following it, which excepts from the policy such losses by fire as bccur during invasions, insurrections and similar commotions. The object of the policy is to secure against losses by fire, and any los,s by theft not attributable directly to the fire, would not be within the contract, and when the company exempt themselves from liability for fires which happen by reason of invasions, &c., it is superfluous to add, that losses by theft occasioned by such fires would also be without the protection of the policy. Indeed the structure of the sentence will not admit of such a construction, without doing great violence to the ordinary rules of our language. There is more difficulty in reconciling this exemption with other specific provisions, and with the general scope of the contract. It is provided, that “this company shall not be liable to make good any loss by theft.” In another clause, it is declared that “in case of fire or loss or damage -thereby, or of exposure to loss or damage thereby, it shall be the duty of the insured to use all possible diligence in saving and preserving the property; and if they shall fail to do so, this company shall not be held answerable to make good the loss and damage sustained in consequence of such neglect.” If the exception in question were stricken out of the policy, it is not doubted, that the company would have been liable for losses by theft, occurring during fire, without negligence in attempts to save the pro8 |>erty insured. The question is, can such an exception stand, in a policy which enjoined upon the insured to use all possible diligence in saving the property, and which exempts the underwriters from all responsibility if such diligence is not exerted? It is clearly the duty of the court to give effect to both clauses, and every clause of this contract, if it can be done, although the result of such a construction may be to diminish the value of the security. It is for parties to make their own contracts, and courts of justice cannot relieve against injudicious ones, unless upon the ground of fraud, or mistake or some other grounds not pretended to have any existence here. The substance of this policy may be thus stated. The company make themselves responsible for all losses by fire, except such as occur during certain civil commotions, &c. Thefts occasioned by a fire, are within such a policy, unless expressly excepted — for they are losses by fire. But here the exception is made, and it is clearly intended that for losses of this kind the insurers will not be responsible. It is not within the province of courts to interfere, because such provisions may be thought injurious to the interests of the assured and tending to lessen the value of the indemnity. Both parties are presumed to be competent to guard their own interests. It may be, that the effect of the stipulation, which exacts due diligence from the assured in rescuing his property from the flames, is to require him to subject his property to a risk against which he has no protection. It would seem that such is the effect of such a stipulation. No vigilance can always guard against thefts in such a crisis as an extensive fire in a populous city creates. If the goods were negligently lost by theft, no such clause as is in this policy would be necessary to exempt the company from liability for such losses — but this is a class of losses by fire, against which the policy offers no indemnity. It is for those who take such policies to estimate to what extent this diminishes their value. In certain descriptions of property where the value of the property is very great in proportion to its bulk, such policies are obviously greatly less valuable than where the property is of a kind not easily removed, without detection. Suppose in a contract of insurance, it was stipulated that the insured should in case of fire, cause the premises to be flooded with water, and it was further declared that the underwriter would not be responsible fot any losses occasioned by water. The insurers are to pay all losses by fire, but the insured are required to use all exertions to extinguish the fire by an element which must inevitably impair the value of the [9] property insured. The more effectually the insured comply with their bargain the more effectually they diminish their own security. But I cannot say, even in such a case as this, that the contract fails entirely as one of indemnity, for all losses by fire are still insured against, and it must depend upon circumstances whether the contract proved to be a valuable one or not. It is better, where the terms of the contract are plain, and the meaning such as to be understood, that we should follow the plain language, and manifest intent rather than seek out a doubtful interpretation with a view to reconcile all the clauses to the supposed interests and objects of both parties. Judgment affirmed.