Jones v. Southern Ins. Co.

Caudwell, J., (after stating the facts as above.) Literally, night is that part of the natural day between sunset and sunrise. Are the words “at night, ” in the policy in suit, to be given that meaning? The object of this clause is to provide against the loss of the merchants’ boob- by tire. The loss of the books by fire in the day-time is just as injurious a; their destruction at night. Why, then, did not the insurer stipulate that the books should be kept secure from destruction by fire at all times? For the obvious reason that the books must be used during the time that the business is carried on, and to that end they must be kept on the desk or counter of the store. But after the business of the day is over, and there is no longer occasion to use the books, and the store is closed for the night, there is no hardship in requiring that they shall not be left to the hazard of destruction by fire. Besides, as long as there is some one in the store, transacting or conducting any of the necessary business operations of the store, there is the chance that in case of fire the books may be saved; but that chance is gone when the store is closed for the night. In the construction of contracts the customary signification of words prevails over the literal, grammatical, or classical meaning. The situation of the parties, the subject-matter of the contract, and the customs and usages of trade, to which it relates, will all be considered. It is a canon of construction that all words, “if they be general, and not express and precise, shall be restrained unto the fitness of the matter or person.” Numerous illustrations of this rule are to be found in insurance cases. In a policy of insurance against “restraint of kings, princes, and people of what nation, condition, or quality soever,” the rule was applied, and “people” was construed to mean ruling powers, and not individual marauders. 2 Whart. Cont. § 6(57. A policy covered a ship, and tackle, apparel, and furniture “of and in the said ship,” and the tackle, apparel, and furniture were taken out of the ship, and put in a warehouse to keep them dry while the ship was heeled and cleaned; and while so in the warehouse they were destroyed by fire. The insurers insisted they were not liable, because the articles were not destroyed'“in the ship.? It will be observed that, the requirement that the articles should be “in the ship” was as explicit as the requirement in the policy in suit that the books shall be “in a fire-proof safe at night.” It rvas found in that case, as it is in this, that the course pursued by the insured was according to the necessary and usual course of business, and the court held the loss was covered by the policy. “ It is certain,” said one of the judges, “that in the construction of policies the stridum jus or apex juris is not to be laid hold on; but they are to be construed largely for the benefit of trade. * * * The construction should be according to the course of trade.” Bond v. Gonsales, 2 Salk. 145; Wood, Ins. § 59. The construction contended for by the insurer in this case is not according’ to the course of trade, but so contrary to it, that it would inevitably ruin any country merchant who should attempt to conform to it. The proof shows that 22 at some seasons of the year, merchants in the country and villages do an active business till a late hour of the night. Goods are sold for cash, and on credit, payments are made, commodities purchased, accounts rendered, and settlements made, until 8 or 9 o’clock at night, the same as in the day-time. No merchant could sustain himself in business who closed at sunset. ' The business transacted during the early hours of the night is identically the same as that transacted in day-light, and the necessity for the presence of the books, and their constant use, the same. Merchants cannot conduct their business without books. The policy in suit makes the assured covenant “to keep a set of books showing a complete record of all business transacted, including all purchases and sales, both for cash and credit.” This covenant can only be kept by having the books at the desk and counter, open and accessible at all times when the business is going on. If the. defendant’s construction of the policy in suit is the true one, then merchants holding such policies must absolutely cease to do business at sunset; for the policy obliges the insured to keep a set of books showing a complete record of all business transacted; and if the insured must keep such books securely locked in.a fire-proof safe from sunset to sunrise, it is obvious no business can be transacted between these hours. Suppose the policy had contained a stipulation that “some person shall sleep in the store-house at night.” Would such a clause be construed to require some person to go to bed, and go to sleep, at sunset, and sleep continuously till sunrise? The clause, construed literally, would require this. The law rejects such literal and hypercritical interpretation of words in a contract. A contract will not be construed as demanding unreasonable things, or things contrary to the known necessities, custom, and usage of trade, or of the parties, if it is susceptible of any other construction. And “in all cases the words of a policy are to be taken most strongly against the insurer,” (Wood, Ins. § 57,) and “are to be construed in cases of doubt against the insurer,” (Id., and 2 Whart. Cont. § 670, and note 4;) and, “when capable of two meanings, that meaning is to be adopted most favorable to the insured,” (Id.) “The courts will not permit the assured to be misled, or cheated, where there is any sort of justification, .from the language used, for the interpretation placed by him upon the instrument., A contract drawn by one party, who makes his own terms, and imposes his own conditions, will not be tolerated as a snare to the unwary; and if the words employed, of themselves, or in connection with other, language used in the instrument, or in reference to the subject-matter to which they relate, are susceptible of the interpretation given them by the assured, although in fact intended otherwise by the insurer, the policy will be construed to favor the assured.” Wood, Ins. § 59. The plaintiffs had every reason to suppose the policy permitted them to pursue their accustomed mode of doing business, which was the necessary and usual mode of doing business in that country, and the defendant must be presumed to have so understood it. Daniels v. Insurance Co., 12 Cush. 416. The proper construction of the policy is not that the books shall be kept in the safe from sunset to sunrise, but that 23 they shall be so kept from the time the business of the day is ended, and the store closed for the night. It is part of the business day, and not “night,” within the meaning of the policy, so long as the store is kept open and business transacted, though it be 8, 9, or 10 o’clock at night; in other words, within the meaning'of the policy, night begins when the business for the day ends. What has been said disposes of the defense that the store was “not actually open for business ” at the time of the fire. The fact is found that it was so open. The circumstance that the door was locked, so that customers had to knock for admission, has no significance in the light of the evidence. When they knocked they were admitted and waited upon. A store is “actually open for business” when it is lighted up and the merchant or his clerk is there ready, able, and desirous to sell goods, or do anything else that constitutes a part of the work or labor of conducting tlie mercantile business. A store is as much “open for busiuesss” while the merchant is waiting for customers, during his customary business hours, as it is when the customers are present. An essential and indispensable part of the daily business was actually in progress when the fire broke out. The clerk was writing up the day’s business in the books, in accordance with the custom and usage in country stores, where the salesman does duty as book-keeper also, — country merchants rarely employing professional book-keepers. This work was going on in strict compliance with the covenant exacted from the plaintiffs by the defendant; and if the defendant desired to prohibit the plaintiffs from complying with this covenant by doing the work in the store after sunset, in accordance with the custom and usage of country merchants, it should have inserted a stipulation in the policy to that effect. The covenant'to keep books, and the covenant to keep them in a safe, must be construed together, and, in the absence of an express stipulation to the contrary, the covenant to keep books will be construed to mean that the books shall be kept in the time and manner usual and customary with merchants. Judgment for plaintiffs for the amount of the policy.