Atlantic Ins. Co. v. Manning

• Decision Date: 01 April 1877
• Citation: 3 Colo. 224
• Parties: ATLANTIC INSURANCE CO. v. MANNING.
• Court: Colorado Supreme Court

3 Colo. 224

ATLANTIC INSURANCE CO. v. MANNING.

Supreme Court of Colorado

April, 1877

Error to Probate Court of Arapahoe County.

THIS was an action of assumpsit brought by George Manning, the defendant in error, against the Atlantic Insurance Company the plaintiff in error, upon a policy of insurance.

It appeared on the trial that on the 23d day of November, 1874 Manning procured of the Atlantic Insurance Company a policy of insurance on a house owned by him in the town of Evans Weld county, Colorado. The policy was for the sum of $1,500 and was for the period of one year from November 23d, 1874. About the 24th of December, 1874, the house covered by the policy was destroyed by fire. The preliminary proofs having been made by Manning were delivered to William H. Worthington, the agent of the company, and by him forwarded to the home office. Worthington received by mail the following letter in reply:

OFFICE OF THE ATLANTIC INSURANCE COMPANY, NO. 178 Broadway, N. Y.

JOHN D. COCKS, President. W. O. CORNELL, Secretary.

NEW YORK, February 26th, 1875.

Messrs. Evans & Worthington, Agents, Denver, Col.:

Your favor 19th inst. is at hand. Notice of cancellation of policy received; return the same with monthly account. We have received the proofs of loss under policy 26, account of George Manning. The same are unsatisfactory, as there is not claim under the policy, the risk being changed by the removal of H. C. Sherman, thus leaving the dwelling unoccupied, and so remained at the time of the fire, thus causing the policy to become void under the conditions of the same. You will please notify Mr. Manning to this effect, and oblige,

Yours, Truly,

JOHN D. COCKS, President.

The policy, among others, contained the following conditions:

'Or if the above-mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever within the control of the assured, without the assent of this company indorsed thereon, then and in every such case this policy shall be void.'

It appeared in evidence that the house in question had been occupied by one Sherman during the summer of 1874; of that he was in the occupation of the premises on the 23d day November, 1874, as a tenant of Manning; that he moved into another house shortly before the fire, leaving in the insured premises a quantity of his household furniture; that this furniture had not been removed at the time of the fire; that Sherman retained the keys of the premises and that his right of occupation would not have expired until the 1st day of January, 1875.

The policy contained the following recital:

'By this policy of insurance, the Atlantic Insurance Company, of New York, in consideration of $26.25 to them paid by the insured hereinafter named, the receipt whereof is hereby acknowledged, do insure George Manning against loss or damage by fire to the amount of fifteen hundred dollars ($1,500), on his two-story framed, shingled roof, dwelling-house, situated on lots numbers nineteen (19) and twenty (20), twenty-one (21) and twenty-two (22), in block number sixteen (16), in the city of Evans, county of Weld, Territory of Colorado.'

The jury were instructed upon the question of the vacancy of the building, that if it was not within the means or control of the plaintiff he could recover. The instructions asked by the defendant omitted this qualification and were refused. The jury returned a verdict for $1,500 in favor of the plaintiff. The defendant filed a motion for a new trial, but the motion was denied and judgment rendered on the verdict.

Messrs. THOMAS & HEREFORD, for plaintiff in error.

Messrs. SYMES & DECKER, for defendant in error.

ELBERT J.

Under the authorities the construction placed by the court below upon the clause of the policy in controversy must be sustained.

In the case of the North American Insurance Company v. Zaenger, 63 Ill. 465, the clause construed is in language, grammatical structure and punctuation, similar to the one under consideration. Ths rule of construction adopted by the supreme court in the case of Insurance Co. v. Slaughter, 12 Wall. 404, is also clearly applicable in this case. At best the clause in question must be held to be ambiguous, that is to say, a case where the judgment hesitates between two imports, unable to determine which of the two was intended. In such case the rule is well established that where the preparation of an instrument is left to the party to become liable under it, and its meaning is doubtful, by reason of the use of ambiguous or obscure language, other things being equal, the construction is to be adopted which is most favorable to the promisee. Merrick v. Germania Fire Ins. Co., 54 Penn. 277; Hoffman v. AEtna Ins. Co., 32 N.Y. 413, and cases cited.

Under this construction of the clause in controversy the instructions given by the court below correctly pronounced the law upon the evidence, the instructions asked by the defendant were properly refused.

Overruling the defendants' motion for nonsuit with leave to the plaintiff to introduce additional evidence was entirely within the discretion of the court, and is not ground for exception.

Nor was there error in...