Bowman v. Pacific Insurance

Napton, Judge, delivered the opinion of the court. The construction given to the policy sued on was, in our opinion, erroneous.- The first clause of the policy referred to creates a forfeiture in the event that any of the articles enumerated in the memorandum of special rates is kept in the house insured, except where a special provision is made on the subject in the policy, or where such special provision is subsequently agreed to by the parties, reduced to writing and endorsed on the policy. A special provision in relation to gunpowder is found in the body of the policy, and that provision is totally inconsistent with the construction of the first clause which absolutely excludes it. Twenty-five pounds of gunpowder are allowed to be kept, provided it is kept in tin or metallic canisters. To construe the first section as excluding gunpowder in toto, and the second as allowing it in certain quantities and secured in certain modes, produces a palpable contradiction in the body of the instrument, which is unnecessary. The two provisions will harmonize if the one be understood as modifying the other, and in doing this we must consider the special regulation as controlling the more general one, and not give a preponderating importance to the general provision, as the defendant’s counsel insists, and to produce consistency interpolate a material qualification upon the special clause. The company insists that the privilege of keeping gunpowder, in kegs of twenty-five pounds or under, shall only be enjoyed when there is a special agreement for that purpose; or rather when there is a special agreement for keeping gunpowder at all. Such interpretation would seem [155] to be a strained one ; for, if. a special agreement, in writing and endorsed on the policy, had to be made, in order that the insured might keep any gunpowder whatever, it would surely require no more trouble and hardly any more writing to put down the whole of such agreement at once and specify the amount beyond which the insured could not go and the manner in which the powder should be kept. This makes the special printed clause in the policy almost useless. The other judges concurring, the judgment will be reversed and the cause remanded.