Haws v. St. Paul F. & M. Ins.

Dissenting Opinion,

Mb. Justice Paxson :

I regret that a broader view has not been taken of this case. We have decided in a number of instances that where a policy of insurance contains a printed clause which is not applicable to the particular class of insurance covered by the policy, such clause is not binding upon the assured in case of loss. The reason for this ruling is, that it could not have been in the contemplation of the parties at the time the contract of insurance was made: Haws v. Fire Association, 114 Pa. 431. We accordingly held in that case that an insurance of a horse as “ contained in the assured’s barn,” covered the horse when in the assured’s pasture field. The reason of this is plain. The only season of the year when horses are exposed to lightning is in the summer, when it is well known that farmers’ horses are in the field for a considerable portion of the time. Hence, it is not reasonable to suppose that the parties to the contract intended that a printed form in a fire policy, intended to apply to a different matter, should be applied to defeat the insurance.

Mr. S. B. Griffith (with him Mr. JEJ. P. Gillespie and Mr. Samuel Griffith), for the appellant:

In the case in hand the insurance was of personal property contained in a barn, with a lightning clause added. The policy was in the usual form, with a clause that the policy should not cover any of the property while removed from the barn. This was all well enough for the inanimate property in the barn. But the lightning clause was intended for the horses. No one insures hay, grain, and farming implements from lightning. I concede the clause against removal technically covers the horses. But I still think that as to the horses insured by lightning, it was never intended to apply; and was not and could not have been in the contemplation of the parties at the time of the making of the contract, assuming them to have been reasonable beings capable of making a contract. I would reverse this case.

Justices Green and Williams request me to say that they concur in the foregoing.

On January 21,1889, the court, on petition of the appellant, ordered a re-argument. In pursuance of this order the case was argued on October 14, 1889, before Paxson, O. J., Stbrrett, Green, Clark, Williams, McCollum and Mitchell, JJ.

1. The contention in this case arises entirely from the negligence of the defendant company in making a contract of indemnity against loss from lightning, upon a printed blank prepared for fire insurance only, and containing an almost innumerable array of conditions, any one of which will always conflict with any kind of insurance other than that for which the blank was prepared. It is plain from its conditions, that the blank was intended to be used in insuring buildings and inanimate personal property, against loss or damage by fire and fire only. The contract of indemnity in a policy of insurance is the written contract; and any printed conditions or stipulations which detract from the full measure of the indemnity contracted for, are void and of no effect: Grandin v. Insurance Co., 107 Pa. 26; Haws v. Fire Association, 114 Pa. 431.

2. If these printed conditions have any effect on the contract of indemnity when repugnant to it, then our recovery should be defeated because the colt was killed by lightning, with far more reason than because it wa,s removed from the building in which it was insured. The printed clause of forfeiture on which the court below ruled the case, is repugnant to the written contract for indemnity and must fall: Harper v. Insurance Co., 22 N. Y. 443. It is equally as repugnant as the printed conditions which this court refused to enforce in Grandin v. Insurance Co., 107 Pa. 26; Haws v. Fire Association, 114 Pa. 431, and American etc. Ins. Co. v. Haws, 20 W. N. 370. To give effect to it is practically to destroy the indemnity against lightning for which the plaintiff paid, for all the world knows that brood mares and suckling colts are never kept in barns in summer, but run in pasture, and the summer is the only time when there is danger from lightning.

3. It was for the animate property, the horses, that the lightning clause in this policy was intended, for the evident reason that the damage which lightning, not followed by fire, would do to the other personal property insured would be but trifling, while it kills a horse whether followed by fire or not. If this provision was not intended for the horses and for them alone, it was surplusage; and if it was intended for them, it must override a printed condition evidently intended for another kind of property. All the other conditions of the policy show that the printed clause, respecting removal from the building. had reference to the kind of property that would generally be insured in that kind of blank, namely, inanimate property. But the words, “ unless otherwise specified in the policy,” show that it was contemplated that agents might sometimes insure property to winch that condition is inappropriate, and should then be free to bar its operation.

4. We submit that this policy shows a special contract by which the operation of the condition was barred as to the horses; that the written clause insuring against loss by lightning, whether fire ensues or not, was intended particularly for the horses, and was designed to cover them in the only place where experience teaches they were in danger from lightning not followed by fire, that is outside the barn. Whoever heard of a horse being killed by lightning in a bam without the barn being burnt ? The condition in this case is not so strong as that in American etc. Ins. Co. v. Haws, 20 W. N. 370, for the words, “ unless otherwise specified in the policy,” were missing from the policy in that case. Under these words the agreement for indemnity against lightning furnishes all that is required, if anything is, to render the forfeiture clause of no effect.

5. If this policy had been solely upon the horses, with all the printed conditions as they are, this court, following the line so clearly laid down in the cases we have cited, would have held the condition inoperative. Why should the fact that there are two kinds of property insured in this policy make any difference ? Is it impossible to insure two kinds of property in the same policy and give to each its proper protection ? Shall the rules and conditions governing inanimate property always override those governing animate property, when both are covered by one policy, no matter how small the amount of the former and how large that of the latter ? If a clause destroying part of the protection bargained for, is of no effect when the insurance is on one kind of property, but, when an article to which the clause relates is introduced, the clause then becomes binding, not only on that article, but upon everything else, the law is not certain, as it should be, but we have a sliding rule for the construction of the same condition.

Mr. Samuel Redmond (with him Mr. 8. F. Thompson), for the appellee:

1. Parties hare unlimited power to make suclx bargains respecting insurance as they please: 2 Parsons on Cont., 851; Contracts on this subject will be enforced as made: Commonwealth Ins. Co. v. Sennett, 37 Pa. 205. Clearly expressed stipulations are not to be defeated by construction: 2 Parsons on Cont., 500; Shafer v. Senseman, 125 Pa. 310. The policy is the law of the legal relations of the parties, by which their mutual rights and liabilities are to be measured: Weisenberger v. Insurance Co., 56 Pa. 442. Its words are to be construed in their plain, ordinary and popular sense: Robertson v. French, 4 East. 135. There is no ambiguity in the language of the policy under consideration, and the interpretation given it in the court below is the only reasonable one its language will bear; any other is simply the product of the imagination. Out of every 100 men who understand the English language, 99 would probably say, on reading the policy, that the judgment of the court is correct. If it is wrong, the law of insurance in Pennsylvania is a greater snare than the laws of Caligula.

2. The company had a right to contract for a limitation of the risk to the location where the property was, at the time the insurance was effected: 2 Parsons on Cont., 428. The policy makes no distinction between animate and inanimate property. It unequivocally excepts out of the risk property of “any kind” while removed from the specified building. Suppose the plaintiff hauls his grain to market, in his own wagon with his own horses; and that while at the market town all are destroyed by fire. What reason is there for the distinction the plaintiff attempts to draw between the horses, on the one hand, and the wagon and grain, on the other? Was not the wagon made for use, and the grain raised to be marketed? Was it not in contemplation that they could not always remain in the barn ? In fact, the argument of the plaintiff, based upon the “ peculiar nature ” of the horses, is equally applicable to the wagon and grain, and is an attempt to get rid of the plain contract in the policy by a metaphysical jargon.

3. Certainly a line of distinction is not to be drawn between animate and inanimate property, in the construction of policies, for in Grandin v. Insurance Co., 107 Pa. 26, cited by the plaintiff, the property was petroleum in a pipe-line. Can a different rule apply when the loss is caused by lightning, from that applied when it is caused by fire ? This would be absurd. Persons and animals have often been killed by lightning while in buildings, and it is common practice among insurance men to limit lightning risks to animals when in buildings. Had the contract been that the risk attached to the horses outside the barn, it would have been specified that it should continue while they were on the plaintiff’s premises, as all insurance companies are accustomed to do in such cases. It was not contemplated that the horses, wagons, etc., should remain in the barn all the time, but it is clear that the risk was to attach only while they did: 2 Parsons on Cont., 428; Pearson v. Commercial Ass’n, 9 Law Times, N. S., 422.

Opinion, Mb. Justice Clark:

In view of the diverse opinions entertained when this cause was here before, we ordered a re-argument. The re-argument has not resulted, however, in effecting any change in the judgment then entered. The Court, although somewhat differently constituted, by a majority is not inclined to recede from, but rather to adhere to the views then expressed in the opinion filed. We do not think it necessary to add anything to what was then said.

The judgment is therefore re-affirmed.