Germania Fire Insurance v. Schild

It has been twice adjudged by this court that policies of insurance, like other contracts, should be reasonably construed so as to give effect to the express words of the parties and not to defeat their intention (West et al v. Insurance Co., 27 Ohio St., 1, 9-10; Insurance Co. v. Myers, 62 Ohio St., 529. See also Joyce on Insurance, Secs. 208, 216). And this rule of construction should be observed notwithstanding the rule that when a policy is open to two interpretations which are equally fair, that one should be preferred which would give to the insured the greater indemnity. There is no ambiguity in this policy; and it is not contended that it is ambiguous. Counsel for the defendant in error insists that the words, “This entire policy shall be void,” etc., have no more force than if the word “entire” were omitted, and that therefore this ease is controlled by Coleman & Co. v. Insurance Co., 49 Ohio St., 310. There is much force in the argument that the clauses, “This policy shall become void” and “This entire policy shall become void,” mean the same thing; but by no legitimate construction can the latter clause be restricted to less than the whole policy and whatever is included in it, and therefore the strength of the argument, if it has any, goes to the soundness of the decision in Coleman & Go. v. Insurance Go. The two cases, however, are plainly distinguishable. In the former case the language used in the policy, whether ambiguous in itself or not, had frequently been the subject of construction and ingenious debate, resulting in diametrically opposite conclusions in the courts. In this case the parties, no doubt with knowledge of previous controversies, seem to have endeavored to put the indivisible character of their contract beyond controversy by inserting the word “entire”; and in our judgment they succeeded in their purpose. Unless we reject this controlling word and thus make a new contract for the parties, the policy means precisely what it says and can not be valid in part and void in part. The parties have agreed that it should not be a severable risk and they have clearly expressed that intention. In one case- the policy provided that: “This entire policy, unless' otherwise provided by agreement indorsed thereon or [666] added hereto, shall be void,” etc. It was held that: “The stipulation in regard to the forfeiture is applicable to the policy as an entirety” (Insurance Co. v. Hamilton, 82 Md., 88). In another case the policy contained these words: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, if the subject of insurance be a building on ground not owned by the insured in fee simple.” The insured owned the building which was insured but did not own the land on which it stood. The court said: “We have looked to see whether the suit might not go on as to the chattels contained in the building. The words of the written contract are: ‘ This entire policy, etc., shall be void if the subject of insurance is a building,’ etc. This language is plain and must control. ’ ’ And the court directed the lower court to enter judgment for the defendant (Marlin v. Insurance Co., 57 N. J. Law, 623). In New York the court of appeals has distinguished a policy providing that “this entire policy and every part thereof shall be void” from cases which are cited, and which are like Coleman & Co. v. Insurance Co., supra, the court saying: “This policy is quite different in its legal effect from those considered in the cases cited, it not being expressly provided in those policies, as in this, that a misrepresentation of the situation of one of the subjects insured should invalidate the insurance on all other property covered by the policy ’’(Smith v. Insurance Co., 118 N. Y., 518, 526). “Every part thereof” includes the whole the same as “This entire policy”; and we therefore do not regard this New York policy as materially differing in its provisions from the one in the case at bar. The judgments of the circuit court and the court of common pleas are Reversed.