Boright v. Springfield Fire & Marine Insurance , 34 Minn. 352 ( 1885 )

Mitchell, J.

Action on a policy of insurance, to r&Sover the value-of a colt alleged to have been killed by lightning. The policy was. issued December, 1883. At that time plaintiff owned and occupied a farm in the town of Le Sueur. In 1884 he leased a pasture in the same town, but distant some two miles from the farm referred to. The colt was killed in July, 1884, while in this pasture. The here material part of the policy is that the defendant insured the plaintiff against damage or loss by fire, to the amount of $500, “on his horses and colts while in barn, and by lightning only while in use, or running in pasture, or yard on his farm, in the town of Le Sueur. Minn.”

Aside from that of the cause of the death of the colt, the principal issue of fact upon the trial was whether this policy had been, as contended by defendant, altered after its execution by inserting commas after the words “pasture” and “farm,” respectively. It may admit of serious doubt whether the presence of these commas would in any way affect the meaning of the policy. It has been well said that punctuation is a most fallible standard by which to interpret a writing. It may be resorted to when all other means fail; but the court will take the instrument by its four corners in order to ascertain its meaning. If that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it. Ewing v. Burnet, 11 Pet. 41.

But be this as it may, the policy with its present punctuation is fairly and reasonably susceptible of the construction claimed for it by plaintiff, to wit, that it covered the horses and colts while in use, or while at pasture, anywhere in the town of Le Sueur; and that the risk was not limited to the farm of plaintiff; and, even if it was equally susceptible of another meaning, it should be construed most strictly against the insurer. In determining whether a loss is within the policy, so far as location is concerned, the nature of the property and the uses to which it is devoted may be considered in construing the language used, in order to ascertain the meaning of the parties, unless the location is specifically defined. Wood, Fire Ins. 109. This was not inanimate property, like household goods, having a fixed location, but animals designed for domestic use on the farm and elsewhere, as occasion required. The place of use, as well as the place of keeping them, would necessarily change from time to time, — a fact which the parties must be presumed to have understood. If the risk when the animals were at pasture is to be limited to this farm, the risk while they were in use must be limited to the same location; for, as the policy reads, we see no room for any distinction. Had the insurer intended to limit the risk to the farm then owned by plaintiff, it could, and naturally would, have used more explicit and unambiguous language.

2. The policy, also the record of it kept by defendant’s agent, and the report of it sent by him to the company, were all introduced in evidence by defendant without objection, and examined and compared upon the issue as to the alleged alteration. The defendant then offered a former policy issued to plaintiff by defendant, through the same agent, on the same class of property, and against the same class of risks, but for a smaller amount; also the agent’s record and report of it. These were offered for the purpose of showing that they contained no such commas. The inference sought to be drawn from this fact was that the policy in suit, as issued, did not contain these commas; and this inference was based upon the assumption that the agent punctuated both policies alike. In our judgment, the evidence was inadmissible; the record and report for the manifest reason that they were the mere statements of defendant’s agents, and the policy for the reason that there is no presumption that the second policy was worded or punctuated the same as the first. There was no evidence that the second was copied from the first, or that there was any agreement of the parties to that effect. The second policy was in no proper sense a renewal of the first, although the first was surrendered and cancelled when the second was issued. It was in itself a new, complete, and independent contract. Whatever moral force there may be in the suggestion that the agent would probably write and punctuate the second policy the same as the first, it certainly has no legal probative weight whatever.

3. The only other point made is that the findings are not sustained by the evidence. Inasmuch as the record, neither in the body of the case nor in the judge’s certificate, purports to contain all the evidence, the question cannot, under the repeated rulings of this court, be considered. Henry v. Hinman, 21 Minn. 378; Koethe v. O'Brien, 32 Minn. 78; Craver v. Christian, 32 Minn. 525. And even if the record purported to contain all the evidence, although the testimony as to the cause of the death of the colt is quite scant, yet we hardly think we would be justified in saying that there was not enough to sustain the finding.

Order affirmed.