Saunders v. Agricultural Insurance — 2 A.D. 223

Majority

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Aimee Saunders, Respondent, v . The Agricultural Insurance Company of Watertown, New York, Appellant, Impleaded with Sophie Courtois.

Headnote

Insurance—when the policy does not cover the property destroyed.

Where an owner applies for insurance upon all the buildings on a farm, comprehending a dwelling, a barn and a wagon house, and a policy is issued which insures the barn and wagon house, but does not specifically-insure the dwelling house of the owner, although part of the personal property specifically insured as contained in the barn is in fact contained in the dwelling, a recovery by the insured for .the loss of the dwelling cannot be sustained.

Appeal by the defendant, The Agricultural Insurance Company of Watertown, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May' 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office denying said defendant’s motion for a new trial made upon the minutes.

A. H. Sawyer, for the appellant.

George Richards, for the respondent.

At the" end of the case the appellant asked the court to direct a verdict upon the whole evidence in favor of the appellant upon the ground that it clearly appeared .from the testimony that 'the build

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ing which was destroyed, hy fire was not the building that was. insured by the appellant. This motion the court denied, and the; appellant excepted.

The only.question as conceded by the parties was whether or not the building destroyed was the building insured by the appellant We think that this motion should have been granted, and that there-was no evidence to justify, a finding of the jury that the building that was destroyed by fire was the building insured. The evidence in the case is substantially uncontradicted as to the. situation, of the premises at the time the policy of insurance was issued. Upon one side of- the road was a building that the witness Farnham described as “a story and a half or two-story house with these-additions, one-story additions * * * the main part of the house-was a story and a half or two stories.” It was in this building thus described as á house that the insured and her family lived, and the only building upon the place that could be called a. residence. Upon the opposite side of the highway from this building, designated as a dwelling house, were two buildings, one- called by the witness barn No. 1 and the other a wagon house. They were-separated from each other; the barn was composed of three connected buildings; the wagon house was one building standing by itself. A diagram was admitted in evidence which showed the location of these buildings with the highway, and which was testified to as correct by the person who made it. This being- the situation of the property, there was one building in which the- owner resided, another building which was used for barn purposes, and another that was used as a wagon house."

The insured applied to the appellant for insurance upon all the-buildings, and in consequence of that application the policy in question was issued. That policy insured barn No. 1, occupied by a-tenant, for $500 ; the hay and grain in barn No. 1 for $650; the wagon house for $200, and the wagons, carriages and horses in the* • barn for $150, but contained no insurance upon the dwelling. The-building that was. destroyed by fire was the building standing by itself, which was the only building on the premises used as a dwelling. Bearing in mind this situation of the premises and the absence of any evidence showing a contrary intention, we think it is clear that the building insured was not the building occupied by the-

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owner as a residence, but was the building that was designated on the plan as barn No. 1.

The policy expressly insured wagons and sleighs, carriages and-harness in the barn. ' The horses and cattle were kept in this building designated as barn No. 1 upon the diagram; none of these things were kept in the building known as the dwelling house. There was also insured the grain kept in the barn No. 1, and the evidence is that there was no grain kept in that barn, but that the grain was kept in a part of the building designated as a dwelling house. While the description used in the policy is to some extent ambiguous, at the same time the distinction is drawn in the form of the policy itself between a dwelling house, a barn and a wagon house. In it the dwelling was not insured, yet, strictly speaking, the building that was burned was a dwelling house, for in it the owner dwelt; and there was no other place upon the premises that could come within that description. On the other hand> the building known as barn No. 1 was a barn used for the purpose of keeping cattle, and in it was kept straw, although no. grain was kept there. Considering this condition of the premises in question, no one reading this policy could understand where a dwelling house was not insured, and a barn was, but that the policy applied to the building that was not destroyed, and not to the building that was.

We think, therefore, that the court erred in refusing to direct a verdict for the appellant upon the whole evidence, and that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brtot, P. J., Rumsey and O’Brien, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.