New-York Gas Light Co. v. Mechanics Fire Insurance — 2 N.Y. Super. Ct. 108

Majority

p. 108

The New-York Gas Light Company versus The Mechanics Fire Insurance Co. of the City of NewYork.

Headnote

The defendants, by a policy bearing date the 12th of May, 1326, insured the plaintiffs to the amount of $5000, for seven years, on “fixtures," placed or to be placed in buildings of their subscribers. By another policy dated the 2d of December, 1825, the defendants had insured the plaintiffs to the amount of $2000 on “ gas-meters placed or to be placed in the city of New-York for three years.” At the date of the first policy, the plaintiffs had placed gas-meters to the amount of $2000;—but at its expiration, theira mount had been increased to $20,000. When the policy on thc“ fixtures” wasmade, their value was estimated at $5000;—but this amount was afterwards increased to to $100,000 and upwards.

The gas-meters and fixtures -wore subsequently injured by fire to the amount of $2500, a part of which was upon the “gas-meters and fix^ires” placed at the dale of the policies, and a part upon those which wore established afterwards Held that by the true construction of the policies, they covered all “ fixtures” to the amount of $3000, whether erected before or after the date of the policies. Held also that parol evidence was inadmissible to prove a verbal representation made by an agent, at the time the policies were effected, as to the value of the fixtures intended to be placed by the plaintiffs.

This action was brought to recover the amount of damage sustained by the plaintiffs from the destruction or injury by fire, of certain “ gas meters” and “ fixtures” belonging to them, which had been insured by the defendants in two separate policies.

The first policy was dated the 12th of May, 182G, and by it, the defendants insured the plaintiffs “ five thousand dollars,” viz :

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on “fixtures, belonging t.o and rented by the Company, placed or to be placed in the buildings, stores or dwellings of subscribers, “ for seven years.” In case of loss or damage, the injury to be estimated according “to the true and actual value of “ the property at the time the same should happen.”

By the second policy (which bore date the 2d of Dec. 1825,) the defendants insured the plaintiffs to the amount of two thous- and dollars, “ on gas-meters placed,” or thereafter to be placed in “ various buildings in the city of New York,” from the date of the policy to the second of December, 1828.” The company however, were not bound to pay when loss or damage should occur from “ fire occasioned by gas.”

The loss claimed by the plaintiffs was for damage from fire, not occasioned by gas, to gas-meters belonging to the plaintiffs, placed in various buildings by consumers of gas, and to fixtures belonging to and rented byjhe plaintiffs, placed in buildings, stores and dwellings of subscribers,—all of which were situated in the City of New-York. At the trial it appeared that the plaintiffs commenced the business of supplying gas shortly before the first policy was effected. At the time of its date, the value of the gas-meters “ placed” was about $2000, but when the policy expired, it had been increased, by additional gas-meters, to the sum of $20,000 and upwards.

When the policy on the “ fixtures” was effected, the value of the fixtures, belonging to <he plaintiffs, in buildings, stores and dwellings of their subscribers was upwards of $5000, which amount was subsequently increased, by additional fixtures to upwards of $100,000.

It was admitted that a part of of the damages claimed by the plaintiffs, was for injuries by fire, not occasioned by gas, to the gas meters and fixtures placed by the plaintiffs at the time the respective policies were effected ; and the residue of the injury was to gas-meters and fixtures subsequently placed,—the whole amount ' of which, for the purposes of this case, was admitted to be $2500.

The defendants’ counsel offered to prove that at the time the policies were effected, it was verbally represented by the agent of < the plaintiffs, that the value of the meters and fixtures intended :

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to be placed by the plaintiffs would not exceed $5000, but admitted that such representations were made in good faith, and disclaimed all idea of offering the evidence for the purpose of showing any actual fraud in the transaction. This evidence was overruled by the presiding Judge. Upon this statement of facts it was agreed that a verdict should be taken for the plaintiffs for the nominal sum of $2500, subject to the opinion of the Court, on a case to be made and subject to an adjustment of the amount which the plaintiffs were entitled to recover, to be ascertained according to the principles which the Court should adopt. Either party had leave to turn the case into a bill of exceptions, and it was stipulated, that the Court might, in their discretion, direct a non-suit, or a new trial.

The cause was now argued by Mr. Slosson for the plaintiffs, and by Mr. Jay and Mr. D. B. Ogden for the defendants.

Mr. Slosson observed that there were two points to be considered. The first related to the construction of the contract, and the second, to the admissibility of the parol evidence. The first question was, whether the gas-meters placed after the date of the policy were insured at all. Upon that point, the words of the policy (he said) were plain and explicit. The very subjects of insurance were gas-meters and fixtures placed, or to be placed, and it matters not whether they were established before the date of the policy or afterwards. The plaintiffs wished to insure a certain sum for a length of time on their property, and as it was of a changing and shifting kind, the defendants used words broad enough to cover the intention of the parties.

II. Parol evidence to explain a contract so explicit, was clearly inadmissible. The policies speak their own language and the defendants cannot make them speak another by the mouths of witnesses. [Phil. on In. 117, 118. Thompson v. Ketcham 8. J. R. 189.]

Mr. Jay and Mr. Ogden contended that the policies were satisfied when gas-meters to the amount of $3000, and fixtures to

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the amount of $2000 were erected. That the risk attached to the subjects of insurance then established and not to any thing erected afterwards. Suppose fixtures and gas-meters to the amount of $100,000, to be erected subsequently to the date of the policy and then a loss,—what sum must the defendants pay % Not the whole $5000, but such a pr oportion of that sum, as the fixtures and gas-meters actually insured bear to the $100,000. The construction contended for on the other side, is against the grammatical meaning of the words of the policy, and would lead to absurd conclusions. It ought not therefore to be adopted.

II. As to the parol proof, it ought to have been admitted, because its object was to show an incorrect representation ; and a false representation whether fraudulent or not, avoids the policy.

We think that by the true constitution of these policies, they were intended to cover and did cover all the “fixtures” mentioned therein, to the amount of $2000; and this, whether they were “ placed” before or after the date of the policy. There is an exception it is true, as to losses occasioned by fire, proceeding from gas ; but that does not apply to the-case now before the Court.

As to the parol proof offered by the defendants, it was clearly inadmissible. The contract is to be construed by its own terms plainly expressed in the policies, and it cannot be varied by the proof rejected at the trial.

Judgment for the plaintiffs.