Pindar v. . Continental Insurance Co.

This is an action brought upon a policy of insurance, issued by the defendants, to Alfred Pindar, insuring him against loss and damage by fire, to the amount of $3,000, on merchandise hazardous and not hazardous, contained in his one and a half story frame store and dwelling, on his premises at Pindar's Mills, on the road leading from Rhinebeck to Red Hook, Dutchess county, N.Y. In the written part of the policy, the insurance is in terms "onthe merchandise hazardous and not hazardous," contained in the said store.

It is provided in the printed part of the policy, among other things, that if the said premises at any time during the period for which this policy would otherwise continue in force, should be used for the purpose of carrying on therein any trade or occupation, or for storing, or keeping therein any articles, goods or merchandise denominated "hazardous," or "extra hazardous" in the second classes of hazards annexed to this policy, except as therein specially provided for or hereafter agreed to by the company in writing, upon the policy from thenceforth, so long as the same shall be so used the policy shall be of no force or effect. It is expressly provided in the policy, that it is made and accepted in reference to the terms and conditions thereto annexed, and which are declared to be a part of the contract. There are two classes of hazards annexed to the policy, designated as first and second classes. There are also subdivisions under each of these classes. Three under the first class called "not hazadous," "hazardous No. 1," and "extra hazardous No. 1," and four under the second denominated "hazardous No. 2," "extra hazardous No. 2," "extra hazardous No. 3," and "specially hazardous." The goods and merchandise in the store were consumed by fire, and it appeared by the preliminary proofs of loss furnished to the company, that the merchandise destroyed, included twenty gallons of turpentine, valued at $15, which is one of the articles under the classification denominated "extra hazardous," under the second class of hazards. Upon the trial of the cause, the plaintiff proved the extent and amount of his loss, and the defendant gave no evidence, but moved the court to nonsuit the plaintiff, on the ground that merchandise "hazardous" and "not hazardous" only is insured, and that it is provided in said policy, that, in case any articles denominated "extra hazardous," in the condition attached to said policy, should at any time during the period when the said policy would otherwise remain in force, be stored or kept on said premises, said policy should be void, and the proof being given by plaintiff that turpentine and spirits of turpentine were so kept at the time of said fire, contrary to the provisions of said policy, which motion was denied by the court, as was also a request by the defendant's counsel to direct a verdict for the defendant. Upon the trial of the cause, the plaintiff was permitted to prove that turpentine is usually kept in country stores, and that the same was a regular article of trade in country stores. This evidence was admitted against the defendant's objection, and defendant duly excepted. The judge at this circuit directed a verdict for the plaintiff for $3,163.62, with leave to the defendant to serve exceptions, which were ordered to be heard in the first instance at the General Term.

The cause was heard on the exceptions at the General Term, and a new trial was denied, and judgment entered in favor of the plaintiff upon the verdict, and from which the defendant has appealed to this court.

It is a settled rule of construction in policies of insurance, that, as a general rule, the written portion is to prevail over the printed. (Harper and others v. Albany Mutual Ins. Co.,17 N.Y. 194; 2 Hall's S.C. 622; 1 Arnould on Ins., p. 80, §§ 46, 47.) These insurance companies usually use printed forms in making their contracts, which are calculated for ordinary risks, and contain provisions and conditions usually attached to insurances upon them, and are necessarily quite general and comprehensive in their terms. The ordinary course of effecting insurance is after the terms of the agreement are settled and fixed upon, the policy is then completed, by filling up the blank spaces left for that purpose in the printed form, with suitable words and clauses to express the contract thus agreed upon. The written clauses are considered to contain the elements of the contract, and being framed under the immediate eye of the parties, and without much reference to the terms of the long printed blanks, they not unfrequently present a contract to which some of the printed parts of the policy are inapplicable, and as effect must be given to the real intention of the parties, they must necessarily supersede, or control, such of the printed clauses as would, if enforced and literally applied, be inconsistent with them. There is, say the court, in Wall v.Howard Insurance Co. (14 Barb. 387), reason and necessity for this liberality to the insured; both parties look to the written part of the policy as containing the substance of their agreement. That is prepared by the insurer in the fewest possible words, and should therefore be considered as allowing all to the insured, that either its literal meaning or any fair inference would permit, and in this entirely to control the printed words. Applying this rule to the case before us, there can be little doubt, it seems to me, but the court below were right in the construction, which they put upon this policy of insurance. In the written part of the policy the defendant insured the plaintiff's assignor on all merchandise "hazardous" and "not hazardous" contained in the store in question. Reading this clause of the policy literally, all and every species of merchandise, both "hazardous" and "not hazardous," is covered by the insurance. We are not permitted, therefore, within the principle settled by several adjudications in this court to allow this private clause prohibiting the storing or keeping in said store any of the articles or goods denominated "hazardous," or "extra hazardous," or "specially hazardous," unlawful so far as to avoid the policy, for the very reason that these hazardous articles are by the express terms of the policy insured in the store. The limited construction put upon the term "hazardous" by the defendant's counsel, cannot be admitted.

It would to a great extent defeat the very object of insurance on merchandise in country stores. It would exclude all of the articles in the four subdivisions of the second class of hazards, and all in the first class denominated "extra hazardous No. 1," which would include a large class of articles usually kept in country stores. China and earthenware, glass ware, sugar, sulphur, tallow, alcohol, looking glasses, India rubber, gutta percha goods, wood and willow ware, and other articles too numerous to mention.

These articles are all embraced in the specification of the second class of hazards, and are just as clearly excluded, and upon the same argument that turpentine and spirits of turpentine are excluded. This could never have been intended by the parties. The fair and reasonable construction of the policy is, that both parties intended it to embrace all merchandise in this store, whether the articles were such as are denominated "hazardous" or "not hazardous."

The case of Pindar v. The Kings County Mutual Insurance Co. (34 N.Y. 648), is in point, and holds that where the articles are thus brought within the discretion of insurance property, they are covered by it, and that these subsequent printed clauses, contradictory though they be, and denying the right of the assured to keep such articles, do not render the policy void. The case before us is much stronger in favor of the plaintiff's right to recover, than was the case of Pindar v.The Kings County Fire Insurance Co., for the reason that the insurance in that case was "on his stock, such as is usuallykept in country stores," and resort had to parol evidence, to show that spirits of turpentine were usually kept in country stores. In the case at bar the insurance is on the merchandise in the store "hazardous" and "not hazardous," and as turpentine and spirits of turpentine are contained in the term "hazardous," no parol evidence was necessary to bring it within the terms of the policy. There was, therefore, no error committed which could prove detrimental to the defendant in this case, in admitting parol evidence to show that spirits of turpentine are usually kept in country stores. The cases of Harper v. The New YorkCity Insurance Co. (22 N.Y. 441); Harper v. The Albany MutualInsurance Co. (17 N.Y. 194), are referred to as sustaining the views above expressed.

I must therefore dissent from the decision of my brethren in this case and vote to affirm the judgment of the Supreme Court.

Judgment reversed.