Kuh v. British America Assurance Co.

Appeal by the defendant from an interlocutory judgment overruling demurrer to of 52 causes action alleged in the complaint. The same issue of law was presented in each case, and the record before us contains the first alleged cause of action only, the parties having stipulated that the decision upon the demurrer to this cause of action shall be final and binding as to the remaining 51.

The action is to recover upon an open policy of marine insurance issued by the defendant, covering shipments of lard, grease, tallow, and packing-house products. The first cause of action alleges the issuance of the policy, which is made a part of the complaint, and that by its terms the defendant agreed, as to each shipment insured thereunder, to pay for all loss of weight in excess of 1 per cent, of the entire shipment, irrespective of the cause of such loss; and that such a loss of weight was sustained by a shipment of tallow, covered by the policy, from New York to Marseille by the steamship “Madonna,” the damage by reason of such excess loss of weight being $101.75. These are the only allegations of the complaint which it is necessary to consider on this appeal. The demurrer was upon the ground that the facts stated are not sufficient to constitute a "cause of action. The defendant contends that it is liable only for loss resulting from the causes specified in the policy, and that, since it is not alleged that the loss in question was occasioned by one of these causes (the complaint containing no allegation whatever as to the cause of the loss), no cause of action is stated.

The question presented turns upon the construction of the policy. This consists of a printed form issued by the defendant, containing general provisions, upon the face of which is attached the printed form of the agents who issued the policy, and which is made a part thereof, and to the latter is attached a further typewritten sheet or rider, also made a part of the policy. In the general form of the policy it is stated that:

“Touching the adventures and perils which the said Insurance Company is contented to bear and take upon itself, they are of the Rivers, Seas, Bays, Sounds, Canals, Railroads, Fires and any and all the risks of Fire and Navigation and Transportation and all other perils.or misfortunes that have or shall come to the hurt, detriment or damage of the said property or any part thereof”—excepting certain perils which are specified.

The printed form of the agents contains a somewhat similar provision, viz.:

“Touching the adventures and perils which the said assurers, are contented "to bear and take upon themselves in this voyage, they are of the seas, men-

of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mark and countermark, reprisals, takings at sea, restraints and detainments of all kings, princes or people of what nation, condition or quality soever, barratry of the master and mariners, and all other perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of the said goods and merchandise, or any part thereof.”

This form specifies in detail the subject and conditions of the insurance, and provides, among other things, that "no partial loss or particular average shall in any case be paid unless amounting to five per cent.” Upon the typewritten rider are further details, and the following clause, which gives rise to the present controversy:

“Lard, greases, tallow and packing-house products of all kinds are insured hereunder—To pay particular average if amounting to three per cent., each tierce, barrel or package separately insured. The original sworn weights at place of shipment to be taken as basis of settlement, and underwriters agree to pay for loss in weight in excess of one per cent, on the entire shipment.”

The plaintiffs contend that under the clause, “and underwriters agree to pay for loss in weight in excess of one per cent, on the entire shipment,” the defendant is obligated to pay for all loss of weight exceeding 1 per cent, on the entire shipment, irrespective of the cause of the same. I am unable to accept this view. It is not disputed that the insurance was generally against specified risks, which may be characterized as marine risks. Under the printed form of the agents, the company was not liable for a partial loss unless it amounted to 5 per cent. By a paragraph in the typewritten rider, above quoted, this liability was extended, the defendant being bound “to pay particular average if amounting to three per cent.” instead of 5 per cent., each tierce being separately insured. It is not, and cannot seriously be, disputed that this liability was limited to the particular risks insured against, but it is urged that the agreement, “to pay for loss in weight in excess of. one per cent.,” is absolute and not limited to these risks. It is true that the words “particular average” are not repeated, but this clause must be construed in the light of what immediately precedes it, and when so construed the meaning is clear. The defendant was liable for damages amounting to 3 per cent, on each tierce or package—original sworn weights to be the basis of settlement—and if there were loss of weight in excess of 1 per cent, on the entire shipment, whether the loss for any particular tierce or package were 3 per cent, or not, then .the defendant was liable for such loss. There is no suggestion in the policy, the printed form of the agents, or the typewritten rider that defendant’s liability for such loss was any more extensive and included any other risks than for the 3 per cent, loss, unless the last sentence in the quotation from the rider be destroyed by taking therefrom the words, “and underwriters agree to pay for loss in weight in excess of one per cent, on the entire shipment.” Obviously the first part of this sentence, “.the original sworn weights at place of shipment to be taken as basis of settlement,” applies to what has preceded; that is, “to pay particular average if amounting to three per cent.” This sentence cannot be thus mutilated, and if it be urged that there is no necessity for so doing in order to sustain the plaintiffs’ claim, then a construction must be given to the whole sen

The paragraph immediately preceding the one under consideration provided that the insurance should attach from the moment the goods left the packing house or factory at the initial point of shipment, whether in the interior or on the seaboard, and remain in force until they were finally delivered at the place of destination. The learned justice at Special Term was of the opinion that since the goods were insured during transportation by land as well as by water, and there were no other provisions in the policy defining or limiting the liability of the defendant for what he termed “land risks,” the 1 per cent, clause applied to both land and marine risks, and bound the defendant absolutely to pay a loss exceeding 1 per cent., no matter how caused. It is true that the perils of transportation by land insured against are nowhere defined or limited, but if it were intended to make this clause the only provision applying to both classes of risks, it is inconceivable that it should have been placed in the middle of a sentence, at the end of a paragraph which obviously refers to an entirely different subject. What land risks were covered by the policy it is unnecessary to consider, as the loss alleged did not occur while the goods were being transported by land.

I am of the opinion, for the reasons stated, that the interlocutory judgment should be reversed, with costs, and the "demurrer sustained, with costs, with leave to plaintiffs to serve an amended complaint, upon payment of the costs in this court and in the court below.

INGRAHAM, CLARKE, and HOUGHTON, JJ., concur. PATTERSON, P. J., concurs in result.