Kellner v. Fire Ass'n

The following opinion was filed February 23, 1906: Siebeokee, J. The contract of insurance provides that the ■transportation company “and other owners as interest may appear” are to be. indemnified against loss by fire of the property described and contained in the warehouse specified in the policies, including certain claims thereon, whether “their own or in their custody as warehousemen, forwarders, carriers, or otherwise.” It is contended that this agreement covers only such property and such interest therein as the transportation company and the insurance companies intended to include; that from the phraseology employed it is manifest that the transportation and insurance companies contemplated only such property and interests in property as the transportation company had within its warehouse and to which it saw fit to attach the insurance; and that this intention of the parties to the insurance is shown by the subsequent provisions •of the policies, authorizing the transportation company to [239] designate wha.t owners of property were to be included in the policies. Neither the transportation company nor the insurance companies deny that the policies cover the interest of the owners of the property designated in Schedule A, which was property stored in the warehouse at the time of the fire and held in the custody of the transportation company in the ■course of its business. It is urged, however, that plaintiff’s property was not held by the transportation company, but ■that he left it in the warehouse after delivery for his accommodation, and not within the possession or control of the transportation company as his agent, and for this reason he cannot be deemed to come within the terms of the policy. It may be assumed that the transportation company gave immediate notice to plaintiff of the arrival of his goods; the facts, however, show that they were held for him in the course of their business arrangements until by written order he directed delivery to his customers. It seems that this arrangement was of long standing and was an inducement to plaintiff to ship his goods over the transportation company’s line. There can be no serious question but that plaintiff would have been liable for reasonable additional charges, for such storage of his goods had the company chosen to demand it. Under these circumstances the transportation company was the custodian of the goods of the plaintiff, and as such, under the agency specified by the broad terms of the policies, held them for plaintiff, either “as warehousemen, forwarders, carriers, or otherwise.” This brought plaintiff within the conditions of the policies and effected insurance on his' property in the company’s custody, unless it be considered that no indemnity was undertaken against its loss under the- insurance clause covering the property of the transportation company and “other owners as interest may appear.” The language of this clause in the policy is unambiguous and plain and insures the property designated against loss, and cannot be limited to the interest or liability of the transportation company in respect to [240] it. This harmonizes with the interpretation given to the contract by the insurance and transportation companies as to a portion of the property destroyed, in that they thereby recognized the insurance as being upon the property in the custody of the transportation company and not an insurance of only such property as might be selected by the transportation company. Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 393, 80 N. W. 467; Strohn v. Hartford F. Ins. Co. 33 Wis. 648; Johannes v. Phenix Ins. Co. 66 Wis. 50, 27 N. W. 414; Johnston v. Charles Abresch Co. 123 Wis. 130, 101 N. W. 395, and cases cited. It is insisted, however, that this construction of the contract is opposed by the subsequent stipulation providing that “the companies named herein as the assured (although they may or may not be liable for any loss) shall, after a loss, give notice to said assurer who was insured hereby, and said notice shall be conclusive upon the assurer as to who, in addition to said companies, was so insured.” It is averred that the terms of this stipulation clearly show that the indemnity for loss was to be limited to the property which the transportation company elected to include. Practically, this construction allows the transportation company at its option to cut off any and all claims for loss of property in its custody which was plainly covered by the terms of the policies, and thereby to deprive the owner of the lost property of a right clearly within the terms of the agreement. Such a construction should not be approved if the agreement can be given a reasonable meaning consonant with the intention expressed in the other parts of the policies and by which the rights and interests of the property owners will be preserved. In effecting the insurance the transportation company acted as the representative and agent of the property covered by the terms of the policies, by the terms it fixed the class of owners whose property was insured, and by the notice clause it undertook to notify the insurance companies of what persons were in [241] fact so insured; and the insurance companies assented to the eonclusiveness of such ownership. Under the notice this provision in effect provided that the insurance companies were bound, as to who were the owners of the property destroyed, by the notice of the transportation company, but it gave the transportation company no power to cut off any right acquired by owners of property covered by the insurance clause. This interpretation of the stipulation gives reasonable significance to its terms and preserves the rights-of all the parties under the other agreements of the policies. Such a construction seems to be the plain meaning of the language employed, which must be deemed to have been so used by the contracting parties. This results in giving effect to all parts of the policies as undertakings to indemnify all "of the class of owners in which the transportation company had a special interest, and therefore it includes every person embraced in the class. Under such circumstances the owners had the right, when the loss occurred, to adopt the acts of their agent, the transportation company, and thereby to secure the benefit resulting from the policies, just as though they had originally been expressly issued to them. Johnston v. Charles Abresch Co., supra, and cases cited. This right was asserted by the plaintiff in his claim after the fire and it was sufficiently brought to the attention of the assurers and the other assured. We find no foundation for the claim that the action cannot be maintained because there is no evidence showing that notice and proof of loss were given and made as required by the contract. It appears that the insurance companies were notified of the fire by the assured soon after its occurrence, and that the assured submitted an itemized statement of the different articles destroyed by the fire; this statement'being in the form two schedules, designated as “A” and “B,” the former containing those articles which the assured claimed were included, and the latter those articles and the names of the owners which may have been insured under the policy. [242] Tbis notice is not disputed, but it seems that there is a dispute between the parties as to whether the property described in the latter list was covered by the insurance. We must hold that the assured gave notice and submitted adequate proof of loss to entitle plaintiff to enforce his claim in this action. Vangindertaelen v. Phenix Ins. Co. 82 Wis. 112, 51 N. W. 1122; Flatley v. Phenix Ins. Co. 95 Wis. 618, 70 N. W. 828; Welch v. Fire Asso. 120 Wis. 456, 98 N. W. 227. By the Court. — The judgment is affirmed. A motion for a rehearing was denied May 8, 1906.