Garrebrant v. Continental Insurance

The opinion of the court was delivered by Swatze, J. We think the case does not call for a decision of the question whether within the meaning of the policy the use of gasoline in the manner in which it was used increased the hazard, nor whether gasoline was kept, used or allowed on the premises in contravention of the policy. Even if the contention of the defendant in these respects is correct, the policy is not avoided. In construing a writing the whole must be construed together, and in view of the reasons which led to the use of the language employed. The paragraph in the policy that contains the clauses above referred to provides also that the policy shall become void “if mechanics be employed in building, altering or repairing the within-described premises for more .than fifteen days at any one time.” This can hardly be construed otherwise than as permitting mechanics to be employed for the specified'time. Prior to the adoption of the standard policy it had been held by several courts that ordinary repairs did not avoid the policy, even where the fire hazard was obviously increased. In Dobson v. Sotheby, 1 Moo. & M. 90, the policy was issued at a low rate, payable for buildings wherein no fire was kept and no hazardous goods deposited. The buildings required tarring. A fire was lighted in the inside and a tar barrel brought into the building for the purpose of performing the necessary operations. The tar, by reason of the negligence of the plaintiff’s servant, took fire, and the premises were burnt. Lord Tenterden said: “The common repairs of a building necessarily require the introduction of fire upon the premises, and one of the great objects of insuring is security against the negligence of servants and workmen. I cannot, therefore, be of opinion that the policy in this case was forfeited.” This decision was quoted with approval by the Supreme Court of New York, in Grant v. Howard Insurance Co., 5 Hill 10. The question was thoroughly discussed581 in a Maryland case, quoted at length in May Ins., § 224; Jolly v. Baltimore Equitable Society, 1 Ear. & G. 295, and by Justice Clifford in James v. Lycoming Fire Insurance Co., 4 Cliff. 272; Fed. Cas. No. 7182. The effect of these decisions was to make it a jury question in each case whether the repairs were reasonable, and that regardless of the time taken. To meet this a clause was introduced in some policies expressly forbidding repairs without the consent of the company, and sometimes a limited time was allowed for repairs in each year. In 1874 the construction of such a clause came before the Court of Appeals of New York. Rann v. Some Insurance Co., 59 N. Y. 387. In that case the policy allowed five days in each jrear for incidental repairs, without notice or endorsement. The assured had procured a-special mechanics’ risk for two months, which expired two weeks before the fire. After its expiration the assured began putting on new siding in place of the old, which had become decayed and dilapidated, and this work had been in progress less than five days when the ;fire occurred. It was held that putting on new siding came within the definition of incidental repairs, and the policy was not avoided. Such was the state of the law in New York when the standard policy was prepared. It was prepared for use in that state. Rich. Ins. 133. We have no doubt the object of this clause was to define and limit the right of the insurer and the assured, and to do away with the uncertainty that had prevailed. This is the view expressed in a recent ca'se in the Circuit. Court of Appeals for this circuit (German Insurance Co. v. Hearne, 117 Fed. Rep. 289), and seems to be the view taken by the Court of Appeals of New York. Newport Improvement Co. v. Home Insurance Co., 163 N. Y. 237; 57 N. E. Rep. 475. In Michigan the court has gone so far as to hold that the provision does not apply to painters, because they are not mechanics, and that the question of the reasonable time occupied in painting is still open, notwithstanding the limitation to fifteen days. The distinction between painters who are employed only to embellish and decorate and carpenters who are employed to construct does not seem to [582] us valid in view of the object of this clause of the standard policy to permit building, altering and repairing. These words seem sufficient to include such a betterment as repainting. It has never been supposed that in our statutory language mechanics’ liens did not include liens for painting. If the word “mechanics” in the policy includes painters, as wc think it does, the policy was not forfeited, for the repairs had been in progress only two days. If, however, the word “mechanics” does not include painters, the policy contains no provision limiting the right to repaint, and the question actually submitted was open for the jury under the authorities above cited. The right to repair must include the right to make repairs in a reasonable, proper and usual way. The fact that the method used may involve an increase of risk is not a valid argument to the contrary, since increase of risk is involved in the very fact of repair, and, as Lord Tenterden said, common repairs necessarily require the introduction of fire upon the premises. By permitting repairs the company assumes the ordinary risk attendant if they are done in a usual and proper way. It contracts in view of the ordinary business methods. The words contained in another clause of the policy, “any usage or custom of trade or manufacture to the contrary notwithstanding,” have no application to the clause permitting repairs. The clause in which they are found must be read as if an express exception of the right to repair for fifteen days had ‘been inserted therein. In this way effect is given to all the words of the policy and to the intent of the parties. The same result has been reached in Michigan and Massachusetts. Smith v. German Insurance Co., 107 Mich. 270; First Congregational Church v. Holyoke Mutual Fire Insurance Co., 158 Mass. 475. In the latter case it was said that if the use of naphtha at the time and in the manner in which it was used was reasonable and proper in the repair of the building, having reference to the danger of fire as well as to other considerations, it would not render the policies void, and that the proper question for the jury was, “Was such a use of naphtha a reasonably safe [583] and proper way of making repairs on this building, under the circumstances?” This was the question submitted in the present case — we think rightly submitted. With reference to the award, it was essential for the plaintiff to show that the award was made in compliance with the policy (Wolff v. Insurance Company, 21 Vroom 453), especially in this case, since unless the award is binding the plaintiff is without proof of the amount of his loss. The question submitted to the jury was whether the conduct of the company’s appraiser in withdrawing was in bad faith, and the judge expressly said that the umpire could join in making and signing the award only in case the appraisers disagreed, and he called attention to the testimony as to their estimates of the loss. The effect of this charge, taken as a whole, is in accord with the rule adopted by this court in Broadway Insurance Co. v. Doying, 26 Id. 569. In that case, however, the appraisal agreement differed from the policy in failing to require that the appraisers should submit their differences to the umpire. It only provided that the award of any two of them in writing should be binding. In the present case the agreement requires that the appraisers shall estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire. In a proper case it would be a question for the jury whether the appraisers submitted their differences to the umpire as the agreement requires, but no request was made to put this question to the jury, nor was exception taken to what the court said upon the subject. Accepting Gibson’s version of what occurred, which is the most favorable view for the defendant, we think both he and Eox did in fact submit the whole matter to the umpire — Eox because he was satisfied with the figures made by Bunyon, Gibson because he thought that Eox was incompetent, and that he and Runyon could probably agree. lie says he volunteered to take the matter up with Runyon, and he actually did so, apparently ignoring Eox. His attempted explanation that he took' it up with Runyon in order that he might understand the situation if he afterward came into the thing does not account for [584] Gibson’s conduct. The very fact that he conferred with Runyon brought the latter into the case, and amounted to a submission on Gibson’s part, and Fox’s subsequent expression of agreement with the umpire to a submission on his part. It was too late then for Gibson to withdraw. The suggestion that there was misconduct on the part of the umpire cannot be entertained in the present action, which is a suit at law. Ruckman v. Ransom, 6 Id. 565. The same principle has been recently applied by this court to an award under a policy of insurance. Kaplan v. Niagara Fire Insurance Co., 44 Id. 780. We find no error in the record, and the judgment is affirmed, with costs. For affirmmice — Magie, Chancellor, The Chiee Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Tren chard,' Bogert, Vredenburgh, Yroom, Green, Gray, Dill, J. J. 14. For reversal — None.