British-America Assurance Co. v. Miller , 91 Tex. 414 ( 1898 )

The Court of Civil Appeals for the Second Supreme Judicial District has certified to this court the following statement and question:

"We deem it advisable, both parties consenting, to certify to your honors for decision the controlling, if not the sole, question in this case, which briefly is, whether, upon the agreed statement below, the terms of the fire insurance policy declared on by appellee covered the loss sustained by him during the life of the policy in a fire at Henrietta, Texas, which not only destroyed the residence of one Fraser, where appellee and his family were temporarily boarding during a term of the District Court then being held by appellee, who was the then regular judge of said court, and which was known to appellant at the time of the issuance of the policy, but also $840 worth of 'trunks, * * * satchels, * * * family wearing apparel, * * * watches, jewels and jewelry in use,' belonging to appellee and then in ordinary use by himself and family, the policy having been issued to him in Wichita Falls, Texas, the place of his residence, covering all loss or damage by fire to his dwelling house there situated, as described in the policy, which policy in the printed part contained these words: 'While located and contained as described herein, and not elsewhere;' and the printed slip attached to said policy by the agent and describing the property insured expressly mentioned 'trunks, satchels, * * * family wearing apparel, * * * watches, * * * jewels and jewelry in use,' etc., 'all while contained in the above described building,' and at the bottom of said slip is written and printed: 'This form is attached to and constitutes the written and descriptive portion of Policy No. 922657 of the British-America Assurance Company of Toronto.' "

The following is a condensed statement of the facts material for the decision of the question certified to us:

Appellee George E. Miller was, on the 26th day of January, 1896, and still is, Judge of the Thirtieth Judicial District of the State of Texas, which embraces the counties of Wichita, Clay, Archer and Young. Judge Miller resided at Wichita Falls, in Wichita County, and owned a residence in that city, located as described in the policy of insurance sued on; and in which residence he resided with his family, which consisted of a wife and two children, respectively six and three years old. In the discharge of his official duties Judge Miller held court twice in each year in the counties above named, at which times he carried his family with him; which facts were known to the agents of the appellant at the time that the policy of insurance sued upon was issued, but the agents did not know the length of time that the family remained with him at each term of the court.

Anderson, Moore and Bean were empowered to make contracts for the appellant, the British-America Assurance Company, insuring property situated in Wichita Falls against loss from fire, but were not authorized to insure property situated elsewhere.

On the 26th of January, 1896, Anderson, Moore and Bean as agents for the British-America Assurance Company made and delivered to George E. Miller a policy of insurance, from which we make the following extracts:

"British-America Assurance Company. Toronto, Canada.

"In consideration of the stipulations herein named and of twenty-eight and 50/100 dollars premium does insure Hon. Geo. E. Miller for the term of one year, from the 26th day of January, 1896, at noon, to the 26th day of January, 1897, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding two thousand and ninety and no/100 dollars, to the following described property while located and contained as described herein, and not elsewhere, to-wit: * * *

"$850 on his Household and Kitchen Furniture, useful and ornamental, Beds, Bedding, Linen, Carpets, Plate and Plated Ware, China, Glass and Crockery Ware, Trunks, Satchels, Sewing Machines, Family Wearing Apparel, Fuel and Family Supplies; also on Musical Instruments, Printed Books and Music, Mirrors, Pictures, Paintings, Engravings, and their frames, Statuary, Bric-a-brac, Watches, Jewels and Jewelry in use, in case of loss none to be valued at exceeding cost; all while contained in the above described building."

On the seventh day of October, 1896, Judge Miller was holding a regular term of the District Court at Henrietta, in Clay County, and had with him his wife and children. They were boarding at the house of J.A. Fraser, at which place Judge Miller and his wife had with them for the use of themselves and their children the property which was burned by fire and which was a part of the personal property described in the policy of insurance in the clause above quoted, and consisted of wearing apparel, jewelry, satchels, trunks, books, etc., which property was usually contained in the residence of Judge Miller at Wichita Falls when he and his family were at home. At 2:30 p. m. on the said day a fire occurred at the house of Fraser by which the wearing apparel, jewelry, etc., belonging to Judge Miller was damaged and destroyed to the value of $840.

There is no dispute of the claim of Judge Miller upon any ground except that which is embraced in the question agreed upon by the parties, which is as follows: "The issue to be determined under the above facts is, whether or not defendant is liable to plaintiff under the policy. The loss having occurred in Henrietta, Texas, defendant claims that its policy under the facts limits its liability to losses which may occur to the property while the same is located and contained in the residence described in the policy. Plaintiff claims that the policy covers the loss at Henrietta under the facts above recited."

To the question propounded we answer that the property which was destroyed by fire at the city of Henrietta was not covered by the policy of insurance described in the statement submitted with the question, and the Insurance Company was not liable for such loss.

While it is true that courts will construe the language of an insurance policy, and especially a clause of forfeiture contained therein, most strongly against the insurer and in such manner as to protect the insured, if the language used is susceptible of such construction; it is likewise true that when a party dealing with an insurance company has made a contract which is unambiguous in its terms, courts will construe and enforce it in the same way as if made between natural persons. A number of cases have been cited which construe the language "contained in" as being descriptive of the place at which the property is located at the time the insurance is obtained, and others in which courts have held that such language must be construed with reference to the use of the property insured, that is, if its ordinary use causes it to be absent from such place and if being so absent from the place mentioned it is destroyed by fire, the property is nevertheless protected by the policy, and the insurance companies have been held to be liable therefor. McCluer v. Insurance Company, 43 Iowa 349; Insurance Co. v. Hawes, 11 Atl. Rep., 107; Mills v. Insurance Co., 37 Iowa 400.

But in the cases above referred to the terms of the policies were less definite than is the one now before the court. In the policy under consideration the property is insured "while located and contained as described herein and not elsewhere;" and in connection with the clause which describes the property which was destroyed by fire this language is used: "All while contained in the above described building." Showing that the property was not insured while out of the house. It is claimed by the appellee that this case comes within the rule laid down in Bills v. The Insurance Company, 87 Tex. 547, and that the language used must be construed with reference to the ordinary use of the property insured. In the case of Bills v. Insurance Co., the language under construction — a clause of forfeiture — did not in its terms embrace some of the articles that were afterwards destroyed, which were embraced in the contract part of the policy, and in discussing the effect of the forfeiture clause this court said: "If the conditions or warranties be repugnant to the portions of the policy describing the subject of insurance the condition must yield to that portion which expresses the terms of liability, as if, for instance, the body of the policy grants insurance upon a stock such as is usually carried in a country store or such as is usually carried in a retail store, and the conditions prescribing that the carrying in the stock certain articles named as extra hazardous will cause a forfeiture of the policy, and it appears from the evidence that the articles expressly named are usually carried in such stocks and embraced in the terms of a policy describing the subject, the clause of forfeiture must yield to the language of the body of the policy and the forfeiture will not be enforced." This simply states the rule that when there is a conflict the contracting part of the policy will prevail over clauses of forfeiture. In other words, the court will not hold that the insurance company did not intend to insure that which it expressly contracted to insure; on the other hand, courts will not so construe plain language as to make a contract embrace that which it was intended not to include.

It is insisted by the appellee that in the ordinary use of wearing apparel, jewelry, trunks, satchels and the like they would at times be absent from the residence of the owner, and that the agent of the insurance companies knew that the assured was in the habit of taking his family with him to the different places where he held terms of the district court in his district, and must have known that such things are generally used on such occasions; therefore the policy must be construed with reference to such general and known uses by the assured, and that the case comes within the line of authorities cited by the appellee to the effect that property thus used will be protected when absent from the house by a policy in which it is described as being "contained" in a certain house. However in this policy the Insurance Company so definitely and unequivocally expresses a contract by which it is not bound for the loss of the property when absent from the named place, that there is no room for construction. The protection afforded by the policy is expressly limited to the time that the subject of insurance shall be contained in the house described and whenever it was taken therefrom it was removed beyond the protection of the contract. Green v. Insurance Co., 91 Iowa 615; Mawhinney v. Southern Ins. Co., 98 Cal. 184; Hawes v. Insurance Co., 15 Atl. Rep., 915. The policy was not forfeited by the removal, but remained in force and covered the property when returned to the residence in Wichita Falls, — hence the rule that demands a construction which would prevent a forfeiture has no application. The Insurance Company, knowing that the class of property embraced in the policy was liable to be removed to other places, provided against liability for it when located at such other points by the express and plain limitations. The appellee likewise knew that in the ordinary use of the property embraced in the contract of insurance it would be carried to other places than his residence in Wichita Falls, whereby it would be voluntarily withdrawn from the protection afforded by the contract of insurance, and if he desired to have it protected while using it away from home he could have made a contract expressing such liability on the part of the Insurance Company.