Kratzenstein v. Western Assurance Co.

at the port or place named in this endorsement, and so shall continue and endure until the same shall arrive and be safely landed at the port of destination, and not to exceed forty-eight hours from the time of arrival.”

The remainder of the policy, so far as it is deemed material, is as follows: “ Touching the adventures and perils which the said Western Assurance Company is contented to bear and take upon itself, they are of the lakes, rivers, canals, railroads, fires, jettisons 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,” except theft, barratry or robbery and certain other exceptions not material to notice. “ It is also agreed and understood that in case of loss or damage -under this policy, the assured, in accepting payment therefor, thereby and by that act assigns and transfers to this company all his or their right to claim for loss or damage as against the carrier, or other person or persons, to inure to their benefit, however, to the extent only of the amount of loss or damage and attendant expenses of recovery, paid or incurred by the said Western Assurance Company.” “ No shipment to be considered as insured until approved and endorsed hereon by this company.”

There was a written endorsement upon the policy substantially iu these words: “To the amount of one thousand dollars to cover on clothing and merchandise * * * including trunks, valued at invoice cost * * * against any and all the risks and perils of fire and inland navigation and transportation while on vessels, steamboats or railroads, or in hotels, stores or depots in the United States * * * and while in custody of the assured, or travelling salesman.” A paper called a “ Eider,” signed by the agent who issued the policy, was attached thereto, containing many provisions not deemed important, but also the following: “Loss, if any, payable to assured or order.” “$1,000 at 2£ per cent for twelve months, from noon of the 18th day of November, 1885, to noon of the 18th day of November, 1886. To attach to policy 242 of Western Assurance Company.”

There was also endorsed upon the policy, apparently on the outside after it was folded: “No. 242, Lake Cargo Policy, Western Assurance Co. of the City of Toronto, Assured, Moses Lobe & Co., Amount insured $1,000, expires November 18,1886, W. A. Carpenter, Agent, No 4 Hanover Street, New York.”

The case shows that the assured owned the property in question when the policy was issued and until the 1st of January, 1886, when it was damaged by water in the following manner : One of the travelling salemen of the assured attempted to cross the Loutre Bayou in the state of Louisiana by fording the same, which was the usual way of crossing. He had. a two-horse carriage, loaded with trunks, containing certain goods belonging to the assured of the kind described in the policy. It did not appear dangerous to ford the bayou, but the horses, without any negligence on the part of the assured or their agent, became entangled in a log that had drifted into the stream and thus caused two of the trunks to be thrown into the water, whereby the goods insured were dam

aged to the amount of $508.52. The log was in the road at the usual crossing of the ford, but it could not be seen at the time and had not been there before.

It was further admitted that the assured had complied with all "the conditions of the policy and that the plaintiff had acquired all the rights of Moses Lobe & Co. to the claim in question.

The learned general term ordered judgment for the defendant upon the ground that the endorsement must be treated as expressing the latest intention and agreement of the insurer and insured, and that, as the word “ carriage ” was omitted therefrom, goods while laden in a carriage were not covered by the policy.

Where a contract contains two repugnant provisions, the one printed and the other written, it is well settled that the latter must control the interpretation of the instrument, as it is presumed to express the latest intention of the parties. Chadsey v. Guion, 97 N. Y., 333 ; Harper v. Albany Mutual Ins. Co., 17 id., 194. Unless the conflict is irreconcilable, however, this rule does not apply, but the principle prevails that contracts should be so construed as to give effect to every word and expression contained therein. Miller v. The Hannibal & St. Joseph R. R. Co., 90 N. Y., 430 ; Barhydt v. Ellis, 45 id., 107; Ward v. Whitney, 8 id., 446. Still, if the printed part of the contract is in general terms and it specifically provides that certain portions thereof are not to be operative unless contained in the written endorsement, the latter must control. Chadsey v. Guion, supra.

The discussion in this case should be confined to the method of transporting the insured property allowed by the policy, as this only is material under the circumstances attending the loss. In considering the questions presented, regard should be had to the fact that the insurer, in writing the policy, used a form designed to cover risks upon large cargoes, and adapted it to a risk upon the wares and samples of a traveling salesman. The obvious nature of the risk suggests the kind of protection needed, and may aid in discovering the intention of the parties.

The main question arising for decision is whether, by the terms of the contract, the permitted means of transportation are to be endorsed upon the policy. No endorsement is necessary, even upon an open or running policy, unless it is required, and then only to the extent required by the specific agreement of the parties. Parsons on Marine Insurance, Vol. I, p. 328. It is claimed, on the one hand, that the words “as hereon endorsed,” as they appear in the first sentence already quoted from the policy, refer simply to the amount and rate of insurance, while it is contended on the other that they refer to and qualify every part of the sentence which precedes them. If the latter construction is correct, it is difficult to see why the word “ endorsed ” should be used twice in the same sentence, as it involves a useless repetition, and is an awkward and unnatural expression. The natural, as well as the grammatical construction, as it appears to us, is that the words in question refer to the amount and rate of insurance- and require that these should be endorsed, as by the first part of the sentence the persons insured were required to be endorsed.

upon the policy. The intermediate portions of the sentence, which relate to the point in dispute, are not so connected with either part containing the word “ endorsed ” as-to be controlled by it.

According to the body of the policy, therefore, the insured had the right to transport their goods on vessels, boats, railroad or carriage. But, assume that, without violence to reason or grammar, the construction favorable to the respondents is possible, and, hence, that it is doubtful what the real meaning is, how should that doubt be determined? Where an insurance contract is so drawn as to be manifestly ambiguous, so that reasonable and intelligent men on reading it would honestly differ as to its meaning, the doubt should be resolved against, the company, because it prepared and executed the agreement and is responsible for the language used and the uncertainty thereby created. Allen v. St. Louis Ins. Co., 85 N. Y., 473 ; Herrman v. Merchants' Ins. Co., 81 id., 184; Dilleber v. Home Life Ins. Co., 69 id., 256, 263; Hoffman v. Ætna Fire Ins. Co., 32 id., 405.

If the defendant intended that the risk should not recover goods in transit, except by such conveyances as should be mentioned in the endorsement, it should have said so in clear and unmistakable terms, so that no one could be misled.

The provision that no shipment is to be considered as insured until approved and endorsed on the policy, has reference only to the property insured. As that is not named in the body of the agreement, it becomes a necessary part of the endorsement, for, otherwise, there would be no subject of insurance and nothing' for the contract to operate upon. As we construe the body of the policy, the endorsement is required to cover but five subjects, the amount of insurance, the rate charged, the goods shipped, the port or place of loading or departure and the names of the assured - With these points covered by the endorsement, the contract became complete and each provision thereof effective. The endorsement, of course, while not required to extend farther, could be made to enlarge or limit any provision of the policy proper. It was clearly within the power of the parties to make the endorsement exclusive by the use of terms showing their intention to do-so. Although, as already appears, the endorsement need not embrace the permitted means of transportation, the question still remains whether the endorsement, as made, contains anything upon the subject that is in necessary conflict with the body of the policy.

The important fact underlying this point is that the contract was enlarged by the endorsement into a travelling salesman’s, policy. Thus the risk was extended to the goods of the assured while in hotels, stores or depots, although by the body of the instrument this was not permitted. The object of the policy was-to protect property in the custody of a travelling salesman while he was off on his trip, whether he was travelling from place to-place, staying over night at a hotel, exhibiting the goods in a store or had them at a depot waiting for a train. Under these circumstances, is it probable that the parties intended to exclude one of the commonest modes of conveyance used by commercial travellers? Moreover, as common carriers and inn-keepers are

insurers, unless protected by special contract or by statute, property in charge of a traveling salesman would stand in greater need of protection while he was traveling with them in a carriage' than when he had them on a vessel or train, or at his hotel. Why should a policy designed to protect a special class omit the risk as to which that class had the greatest need of protection? The written endorsement does not expressly restrict the insurance to the points covered by it. It contains no provision that those shall be the only risks, or that the means of transportation mentioned shall be exclusive. The omission of the word “ carriage ” from the written endorsement does not contradict anything in the printed body of the policy. No words of limitation or of exclusion are used. Nothing in the endorsement either expressly, or even by necessary implication, precludes the use of a carriage to transport the goods. Indeed, it is doubtful whether a condition of that character can be created by implication. Rann v. Home Ins. Co., 59 N. Y., 387 . There is, in fine, no conflict, either literal or in true intent and meaning, between the printed and written parts of the policy ' with reference to the vehicle to be used in carrying the goods from place to place. What then becomes of the word “carriage” as used in the body of the policy? By force of what provision of the contract can it be ignored or excluded? How can effect be given to every word used by the parties, as the authorities already cited require, where there is no conflict, unless it is held that the property was covered while in the carriage of the traveling salesman ?

We think that the loss in question came within the protection of the policy, and that the judgment appealed from should be reversed and judgment ordered for the plaintiff in accordance with the terms of the submission.

All concur.