Phillipsburg Horse Car Co. v. Fidelity & Casualty Co.

Opinion by

Mr. Justice Fell,

The policy of insurance upon which this action is founded was issued by the defendant to the Phillipsburg Horse Car Co., the plaintiff, upon an application in writing in which the insured' set out the number of miles of road operated, the number of cars and horses in use, the number of trips per day, the schedule time and other matters intended to give the fullest information to the insurer of the character and extent of the risk, and ended with the statement: “ There is no information tending to vary the risk except as herein stated.”

The insurance was “ against all liability for damages for or on account of fatal or non-fatal injuries suffered by any person or persons, other than employees of the insured, resulting from any and every accident to or caused by the cars, horses, plants, ways, works, machinery or appurtenances used in the business of the insured and described in the application herefor, which is hereby made a part of the policy.”

The plaintiff owned three large omnibus sleighs, which were used in place of cars whenever the tracks were obstructed by snow or ice. During some winters they were used for a few days only, during others for weeks, and occasionally for months. They bore the name of the company, and were a part of its appliances for transportation. No mention of these was made in the application for insurance. The recovery against the car company was for injuries sustained by a passenger by the up-' setting of one of these sleighs, and the only question we need ■ now consider is whether the accident for which indemnity is claimed is within the terms of the contract.

The verdict could have been properly rendered, andean now be sustained, only upon the ground that the contract of insur- • anee covered the use of other means of transportation than those mentioned in the application, and was against all risks incident to the general business of the company. The learned judge before whom the case was tried entertained this view, and in a charge in which the merit of clear and distinct statement is conspicuous, instructed the jury that: “ The words ‘ described in the application herefor,’ limiting the liability of the company, do not apply to the machinery, appliances, plant, horses, cars, etc., described in the application of insurance, but they apply to the business of the insured ‘ described in the application herefor,’ and therefore mean more than accidents, etc., occurring by the use of the property which is described in the application.”

This view was based upon the construction of the contract and the fact, of which there was evidence, that sleighs were at times used by street railroad companies in conducting their business in the section of country in which the plaintiff’s road was operated.

This view does not seem to us to be correct. The words of the policy limit the insurance to indemnity from liability for damages on account of injuries “ resulting from any and every accident to or caused by the horses, cars, plant, ways, works, machinery or appliances used in the business of the insured and described in the application.” The insurance is against ' accidents caused by certain things used in the business and described in the application, not things used in the business which is described in the application.

There was testimony that for some years the car company had used sleighs when its tracks were obstructed by snow or ice, and that their use was customary under the same circumstances in neighboring towns ; but it also appeared that the use of sleighs was restricted to that section of country, and that it was only one of the ways in common use of overcoming the difficulties caused by snow and ice. The testimony was far short of establishing a use so general that the parties would be presumed to have taken it into consideration in entering into a contract.

The plaintiff was incorporated as a horse car company, and as such had constructed and was operating a street railway by horse power. The use of any other vehicle than a horse car was not authorized by its charter, and could be justified only as a means of overcoming a temporary interruption of its operation resulting from an emergency. The policy by its terms was based upon statements made in the application, which were to be considered as warranties, and it was restricted to injuries caused by or to certain enumerated ways, means and appliances used in the business and described in the application.

The defendants would not have been liable under the terms of the policy if the motive power had been changed by the use of steam or electricity instead of horses, and we are not able to see that the result is different when one kind of vehicle is substituted for another.

This is not the case of the temporary use of another means of transportation upon a part of the line made necessary by reason of the accidental destruction of ears, tracks or bridges, nor of the use of plows or sweepers to clear the track; but it was an entire abandonment during portions of the winter season of the use of the road as a horse railroad, and the substitution of a distinct and different mode of transportation. Whether the risk would be increased or diminished would depend upon the circumstances of the particular case, but it is evident that the risk in the use of sleighs differs from the risk in the use of cars. It includes the danger of upsetting, the chances of collision with other vehicles, the liability to loss of control of the horses— risks which are minimized in the use of street cars. The conditions from which accidents would probably result in the use of sleighs differ from those from which they are likely to happen in the use of cars ; and whether the difference is great or small it is for the insurer to decide whether he will accept the risk.

We are therefore of opinion that the sixth point, asking for a peremptory instruction for the defendant, should have been affirmed; and as this sustains the eighth assignment of error it is unnecessary to notice the other assignments.

The judgment is reversed.