New-York Equitable Insurance v. Langdon — 6 Wend. 623

Majority

p. 623

The New-York Equitable Insuarance Company vs. Langdon.

Headnote

A grocery may be kept in a building insured, if the business of a grocer is not specified in the policy of insurance, in the enumeration of prohibited occupations ; and spirituous liquors, oils, and other articles commonly dealt in by grocers, may be kept in the building as incidental to the business, although there bo a clause in the policy suspending its operation, if such articles be stored in the building.

The keeping of such articles in quantities in the cellar of the building, purchased for the purpose of selling out by retail, and from which the stock in the store is from time to time replenished, is not a storing within the meaning of the policy.

Error from the superior court of the city of New-York. The company insured Langdori against loss or damage by fire, to the amount of $2000, upon a three story brick building, with slate roof, situate at the comer of two streets. The house was burnt down within the time for which it was insured, and Langdon brought a suit against the company to recover for the loss. The policy contained the usual clause suspending its operation in case the building should, during the term for which it was insured, be' appropriated, applied, or used, for the purpose of carrying on or exercising therein any trade, business, or vocation, denominated hazardous or a extra hazardous, or specified in the memorandum of special rates, in the proposals annexed to the policy; or for the purpose of storing therein any of the articles, goods, or merchandise, in the same proposals denominated hazardous or extra hazardous, or included in the memorandum of special rates, unless in the policy otherwise specially provided for or subsequently agreed to. The description of trades, occupations, goods, wares, and merchandise, denominated hazardous and extra hazardous, and the memorandum of special rates specified in the proposals in this case, is almost identically the same as in the proposals of the Sun Fire Insurance Company, which may be seen, ante, p. 490, and by which spirituous li~ quors, oil, &c. are classed amongst merchandise denominated hazardous. The building insured belonged to the second

p. 624

class of hazards, the annual premium upon which was 25 cts. per $100, and hazardous trades and goods were chargeable, by the proposals, with 12} cts. per $100, in addition to the annual premium. The premium charged in this case was 25 cts. per $100. The plaintiff proved, by the surveyor of the company, the report made by him to the company, containing a description of the building insured, in which the first story was described as “to have (the building then being erecting) one room with fire-place, the store, entry, and stairs and by other witnesses, that the manner in which the store part was built, and its situation, being a corner house, indicated that it was intended as a grocery store at the time the building was erected. The fire which destroyed the building originated at a distance from it, and reached it by running along the roofs of the intermediate buildings, until it came in contact with the upper part of the building in question.

On the part of the defendants it was proved, that at the time of the fire, a tenant of the plaintiffs occupied the store on the front floor, and the cellar under the same; he kept a family retail grocery in the store, and had on hand in the store and cellar, at the time of the fire, various kinds of spirituous liquors, oil, and other articles usually kept in retail grocery stores; he generally kept all kinds of spirituous liquors ; he used the cellar to put in such goods as were intended to be retailed in the store. When the fire happened, he had in the cellar one cask of oil, one barrel of rum, one cask of Jamaica spirits, one pipe of gin, some molasses, and some potatoes. He generally retailed his goods from the store, and kept a part ■ of his stock there for that purpose, and replenished his stock in the store from that in the cellar, as occasion required. The oil in the cellar remained in the original cask, but all the casks of liquor had been more or less drawn from for the use of the store. The liquors he had in the store were drawn from those casks, and he had only a barrel or cask of each article, out of which that in the store was taken. All the goods, as well in the cellar as store, were purchased and kept for the purpose of selling out by retail, in small measure or parcels, in the store. The goods in the

p. 625

store were all removed after the building took fire, but before the roof fell in; the goods in the cellar were all consumed by the fire. The defendants then offered to prove that it was, and always had been the uniform custom among the underwriters on fire policies used in the city of New-York, in all cases where retail grocery stores are intended to be insured, if in such stores it is the intention of the assured to keep spiritous liquors for sale by retail, to state that such privilege is granted, either by inserting the same in the body of the policy, or by an endorsement thereon, or by some other memorandum in writing; which evidence was rejected by the court. The court charged the jury that the keeping the grocery store in the building, and using the store and cellar for the purpose of carrying on therein the business of a retail grocery store, and for the purpose of keeping therein for sale, in such retail grocery store, the oil, spirituous liquors, rum, and gin, as had been testified to, was not a violation of the contract on the part of the plaintiff; and that the keeping the oil and spirituous liquors in the store and cellar for the purpose of sale, was not a storing within the intent and meaning of the policy; and that the evidence offered was not sufficient to bar the plaintiff of his action. The jury found for the plaintiff, with $2070 damages, on which judgment was rendered. The defendants sued out a writ of error,

G. C. King, for plaintffs in error.

Every stipulation in a policy must be strictly complied with, or the insurer is not liable. 1 Marshall on Ins. 348. Parke on Ins. ch. 18. Phil. on Ins. 124 to 128. The same rule is applicable to fire as to marine policies. 6 Cowen, 673. The rate of premium received, shews that the underwriters did not assume a risk, arising from hazardous business, or from hazardous goods; for if so, they would have charged the additional premium. Allowing that a grocery, not being prohibited, might be kept in the building, it does not follow that articles expressly prohibited, such as spirituous liquors and oil, could be kept for sale. The contract was violated also by the storing in the building of prohibited articles. The term storing is used in the policy without any restriction, and the underwriters may

p. 626

insist upon a strict literal construction. It cannot be limited to warehousing, but must be considered as applying to any storing for the purpose of carrying on business.

W. Slosson, for defendant in error.

The assurers had all necessary information when they entered into the contract; they knew the building was to be occupied as a store, and from its locality, might well suppose it would be used as a grocery ; they, therefore, must be held strictly within the rules of law. A variety of trades and occupations are enumerated in the proposals, the canying on of which, in the building, suspends the operation of the policy ; that of a grocer is not mentioned, and the maxim expressio unius exclusio est alterius applies. 2 Johns. C. 289. Nothing but fraud will extend the contract. 1 Johns. C. 340. If a grocery is allowed, every incident to the canying on of such business is permitted, and in'support of this proposition, the counsel cited 15 Johns. R. 338; 8 East, 273. The keeping of the articles of merchandise by the tenant of the plaintiff in the quantities, manner, and for the purpose for which they were kept, was not a storing within the meaning of the policy. The word storing here, applies to an appropriation of the building to the keeping of goods for custody, to be delivered as received, "where such is the exclusive, or at least chief object, and not where the main object is different, and the other merely incidental; it does not apply to the keeping of goods for consumption. Storing is a technical word and has an obvious meaning; no one speaks of furniture kept in a dwelling as being stored ; it is there for use. If this policy be avoided, the insurance of almost every respectable liver in city and country is void, who has in his house a cask of wine. If the grocer abuses his licence, the exception in the policy may apply. It is the purpose for which the articles are kept, which gives character to the keeping. Keeping a coffee-house is not keeping a tavern. 4 Campb. 76, 7.

D. B. Ogden, in reply.

The survey speaks of a store, and the building was on a corner, but it does not necessarily follow that the assurers knew that a grocery store would be kept there. To say that the business of a grocer is not prohibited

p. 627

by the policy, is begging the question ; for, if to the successful prosecution of his business, it is necessary that the articles prohibited by the policy should be kept in the building, the business itself is prohibited. The plain and obvious meaning of the contract is, that all occupations are prohibited, the carrying on of which necessarily brings into the building the hazardous articles specified in the contract. The smallness of the quantity cannot affect the question of storing; if the articles were kept in the cellar, because not wanted in the store, then they were literally stored in the cellar.

By the Court,

It was an express provision of the policy in this case, that if the building insured should, at any time during the continuance of the policy, be appropriated, applied or used, to or for the purpose of carrying on, or exercising therein, any trade, business or vocation, denominated hazardous, or extra hazardous, or specified in the memorandum ofjpecial rates in the proposals annexed to the policy, or for the purpose of storing therein, any of the articles, goods or merchandise, in the same proposals denominated hazardous or extra hazardous, or included in the memorandum of special rates, the policy should cease, and be of no force or effect. The trade or business of a "grocer is not mentioned or specified in the proposals annexed to the policy. It was not therefore a prohibited trade. Mxpressio unius, ex-clusio est allerius. The enumeration of certain trades, or kinds of business, as prohibited on the ground of being hazardous, is an admission that all other kinds are lawful under the contract. The case of Baker v. Ludlow, 2 Caines, 288, is precisely in point. There dried fish were enumerated in the memorandum clause as free from average, and all other articles perishable in their own nature. It was held that the naming of one description of fish implied that other fish were not intended; and that the subsequent words, c< all other articles perishable in their own naturewere not applicable to the articles previously enumerated, and did not repel the implication arising from the enumeration of them. In Doe ex dem. Pitt, v. Lanning, 4 Campb. 76, 7, Lord Ellenborough held, that a coffee house was not an inn, within the meaning

p. 628

of a policy of insurance against fire, enumerating the trade of an inn-keeper, with others, as double hazardous, and not covered by the policy. If the business of a grocer is not prohibited under the policy, the ordinary incidents of that business, it would seem were allowable, not being prohibited, the party had a right to keep a grocery store, and to conduct it in the usual manner. The case of Luckley v. Furse, 15 Johns. R. 342, and Kensington v. Inglis, 8 East, 273, sanction this principle.

The only question then is, whether the keeping of oil and spirituous liquors in the store, under the circumstances disclosed in the case, was appropriating or using the building for the purpose of storing those articles within the meaning of the policy. Every thing that was kept, either in the store or cellar, was kept for the purpose of being retailed. The smaller vessels in the store were replenished from the larger ones in the cellar, which consisted at the time of the fire of one cask of oil, one barrel of rum, one cask of Jamaica spirits, and one pipe of gin; from all of which more or less had been drawn for the use of the store. It appears to me that the word storing was used by the parties in this case in the sense contended for by the plaintiff, viz. a keeping for safe custody, to be delivered out in the same condition, substantially, as when received; and applies only where the storing or safe keeping is the sole or principal object of the deposit, and not where it is merely incidental, and the keeping is only for the purpose of consumption. If I send a cask of wine to a ware-house to be kept for me, that is a storing of it; but if I put it into my cellar or my garret to be drawn off and drank, I apprehend the term would not be considered as applying. Suppose all the varieties of wine were denominated hazardous by the various insurance companies, and the storing of them was prohibited in their policies; could it possibly apply to the private stock which a gentleman might keep in his own house, for his own use and consump-" tion 1 It certainly would be perverting the term from its ordinary, and generally received acceptation.

I think the court below ruled correctly, and that their judgment ought to be affirmed.