Marsh v. Concord Mut. Fire Ins. Co.

• Decision Date: 07 March 1902
• Citation: 51 A. 898,71 N.H. 253
• Parties: MARSH v. CONCORD MUT. FIRE INS. CO.
• Court: New Hampshire Supreme Court

51 A. 898

71 N.H. 253

MARSH

v. CONCORD MUT. FIRE INS. CO.

Supreme Court of New Hampshire. Cheshire.

March 7, 1902.

Exceptions from superior court, Cheshire county; Young, Judge.

Action by James Marsh against the Concord Mutual Fire Insurance Company. Finding for plaintiff, and defendants except. Exceptions overruled.

Debt, on a policy insuring the plaintiff against loss by fire to the amount of $1,000 "on frame mill building and all additions thereto adjoining and communicating, including steam pipes, if any, * * * and occupied by the assured as a pail shop." The plaintiff is a pail maker. His plant consists of a frame mill building, a dry house about 12 feet from the main building, and a boiler house about 2 feet from the dry house. The plaintiff seeks to recover for partial loss by fire in the two latter buildings. The dry house is divided into four compartments, each of which contains a system of steam pipes under the floors, which connect with the boiler house. Steam pipes also extend from the boiler house through the dry house to the main building for heating purposes. There is a movable bridge or walk between the main building and the dry house. The latter building is also connected with the boiler house by a covered walk. The buildings described were all occupied by the plaintiff in his business of manufacturing pails, and were all the buildings he occupied in connection with it. They were commonly known as his pail shop or factory. The agent who wrote the policy was familiar with the premises, the way they were occupied, and the business which was carried on therein. Subsequently the plaintiff obtained other insurance "on frame dry-house building" in the Phoenix Insurance Company; and in order to identify the property described in that policy, which was introduced by the defendants, the plaintiff was permitted to ask the witness if the frame dry house mentioned therein was an addition to the frame mill building described in the policy in suit, and connecting therewith. To this the defendants excepted. The court found a verdict for the plaintiff, and the defendants excepted.

Oliver E. Branch, for plaintiff.

Samuel C. Eastman, for defendants.

WALKER, J. "In construing insurance policies, courts are governed by the same general rules which are applicable to other written contracts. That is to say, it is the duty of the court to adopt that construction of the policy which in its judgment shall best correspond with the intention of the parties, which is to be ascertained from the whole instrument, the nature of the property to which the language of the policy is to be applied, the purposes for which property is ordinarily to be used, its situation, and the manner in which it is usually kept," Stone v. Insurance Co., 69 N. H. 438, 440, 45 Atl. 235. The interpretation of an insurance contract, like the interpretation of other contracts, depends upon the intention of the parties, ascertained from legally competent evidence. For sound reasons, universally recognized in the administration of justice, the evidence which is admissible upon the question of the meaning or intention of the parties does not include, ordinarily, their parol testimony. The point to be determined is not what they in fact intended or expected to do, but what they in fact expressed, as their purpose in the writing presented for interpretation. Goodeno v. Hutchinson, 54 N. H. 159. It is not the province of the court to make contracts for parties, or to allow them to change, modify, or abrogate their agreements by parol testimony that they did not intend to bind themselves by the terms they chose to employ as expressive of their intention. Preston v. Insurance Co. 58 N. H. 76; Tasker v. Insurance Co., 59 N. H. 438, 445. Whether or not the plaintiff understood that the policy in suit covered the dry house and the boiler house must be ascertained, not from his present recollection of his intention, or from his correct or erroneous conception of the extent of the policy at a time subsequent to its date, but from the policy itself, as applied to the subject-matter of the contract. If the fact were established that subsequently he obtained insurance upon the dry house, assuming that it was not covered by the defendants' policy, it coidd have no more legitimate bearing upon the issue of the parties' intention when they executed the contract than his present assertion or contention that it was included in the policy in suit. Nutting v. Herbert, 35 N. H. 120, 126; Alcutt v. Eakin, 33 N. H. 507, 66 Am. Dec. 738.

The policy purports to insure the plaintiff against loss by fire "on frame mill building and all additions thereto adjoining and communicating, including steam pipes, if any, * * * and occupied by the assured as a pail shop." Whether, in the strictest sense of the terms, the dry house or the boiler house could be said to be "additions" to the principal building, and,...