Hayward v. Liverpool & London Fire & Life Insurance

Majority

p. 142

HAYWARD against THE LIVERPOOL AND LONDON FIRE AND LIFE INSURANCE CO.

Court of Appeals,

June Term, 1867.

Headnote

Lstsuiíamce.—What is Loss by Finn—Explosion oh Steam Ehgihe.

A provision in a policy of fire insurance, exonerating the company from loss by fire which should happen by explosion, must be taken to include an explosion of a steam engine insured by the policy, as well as any external explosion.^[1]

The' exception of fire caused by explosion is not inconsistent with the fact that the engine itself ivas insured against fire.

The rule that, in case of repugnancy between the written and the printed parts of the policy, the written shall prevail over the printed part, is not applicable in such a case. In such cases the inquiry always is, is there any repugnancy between the exception and the scope of the undertaking in the policy ? If not, effect is to be given to both the written and printed parts according to the ordinary rules of construction.

p. 143

The case of Harper v. Albany Mutual Insurance Co., 17 N. Y., 194 ,—ex-plained and distinguished.

Appeal from a judgment.

This action was brought in the New York superior court, by Nathaniel Hayward against the Liverpool and London Fire and Life Insurance Co., to recover on a policy of insurance against tire. Among the articles specified in the written part of the policy as insured Avere “machinery, tools, steam engine and shafting contained in building No. 1.”

In the body of thejprinted part of the policy was the following proviso or condition :

“Provided always, and it is hereby declared and agreed that this company shall not be liable to makegood any loss or damage by fire, which shall happen or arise from any foreign invasion, insurrection, riot, or civil commotion, or any military or usurped power, or by any explosion, earthquake, or hurricane, and the policy shall remain suspended and of no effect in respect to any loss or damage which shall happen or arise during the period of any of these contingencies.”

Among the conditions and stipulations printed upon and referred to in the policy, was the following :

“ That this company will not be answerable for any loss or damage by fire occasioned by any invasion, foreign enemy, insurrection, civil commotion, riot, or any military or usurped power whatsoever. Neither will this company be answerable for loss or damage to stock or goods while undergoing any process in which the application of fire heat is necessary, nor for loss or damage by explosion of any kind.”

The superior court held that'the exception exonerated the company, and gave judgment for the defendants. Their decision, which was now affirmed by the court of appeals, is reported in 7 Bosw., 385 .

Luther R. Marsh and O. W. Sturtevant, cited the case of Harper v. Albany Ins. Co. 17 N. Y., 194 .

p. 144

Alexander Hamilton, Jr., for the defendants, respondents.

—cited and relied on St. John v. Am. Mutual Ins. Co., 11 N. Y., 516 ; and insisted that the case of Harper v. Albany Ins. Co. was not in point.

—The provision in a policy that a company will not be liable to make good any loss or damage by fire which shall happen or arise by any explosion, repeated in the conditions appended, and referred to in the policy, must, I think, be taken to include an explosion of the. steam engine insured, as well as any external explosion.

There is no inconsistency in such construction with the fact that the engine itself was insured against fire. The company might well say : We will insure your factory, engine included, against fire produced from every cause, except an explosion of the engine. So far from there being any inconsistency in this, it is impossible to say that it was not a wise and reasonable provision, intended to induce carefulness in the management of the engine, and to refuse the risk of carelessness in its use. It is said the defendant has been paid an extra price for the risk caused by the engine. Still, the exception in the risk of its explosion is not inconsistent with that fact. Undoubtedly the use of a steam engine, and without respect to its liability to explode, increases the hazard of loss by fire to a building in various ways, which sufficiently accounts for the extra charge for insurance, where one is used. In the case of Harper v. Albany Mutual Ins. Co. ( 17 N. Y., 194 ), relied upon by the defendant, the doctrine affirmed was, that in construing a policy of insurance, the intent of the parties is to be gathere'd from both the written and printed portions, and effect given to both, so far ás can be ; but in case of repugnancy between them, the written part shall prevail over the printed part; and the principle was illustrated by the learned judge who gave the opinion of the court, in the following manner; “ When the insurance is directly upon the stock in trade, as, for example, in the business of manufacturing and sale of cam

p. 145

phene, to hold that a general printed prohibition (contained in every policy of insurance) against keeping or using it, unless permission be specially given and indorsed upon the policy, would have the effect to nullify its - direct and positive stipulations, would be prepossterous.”

The case at bar is very different from that of Harper v. Albany Mutual Insurance Co. ; and as we have seen that there is no repugnancy between the insurance of the engine against loss by fire and the exception of loss and damage by fire occasioned by the explosion of the engine, it is not within the principle of that case.

The inquiry always is, is there between the exception and the scope of the undertaking in the policy any repugnancy % If not, in construing the policy the intent of the parties is to be gathered from both the written and printed portions, and effect given to both, according to the ordinary rules of construing written contents.

I am of the opinion that the judgment of the superior-court is right, and should be affirmed.

All the judges concurred.

Judgment affirmed.