Bickford v. Ætna Ins. Co.

• Decision Date: 05 January 1906
• Citation: 63 A. 552,101 Me. 124
• Parties: BICKFORD v. ÆTNA INS. CO.
• Court: Maine Supreme Court

63 A. 552

101 Me. 124

BICKFORD

v. ÆTNA INS. CO.

Supreme Judicial Court of Maine.

Jan. 5, 1906.

Report from Supreme Judicial Court, Cumberland County.

Action by Bion W. Bickford against the Aetna. Insurance Company. Case reported, and judgment for plaintiff.

Assumpsit upon a fire insurance policy of the standard form issued to the plaintiff by the defendant company, to recover for loss of hay, sleighs, and carriages by accidental fire. This policy was a renewal of the original policy issued by the defendant company through one of its agents, Col. Henry R. Millett, and this renewed policy was issued through Col. Millett's successor as agent of the defendant company. Plea, the general issue. At the conclusion of the testimony "and in accordance with the written stipulations of the parties" the case was reported "for the determination of the law court."

In relation to the "compulsory arbitration" clause contained in the policy, the averment in the plaintiff's writ and declaration is as follows:

"And the plaintiff further avers that there is a provision in said policy which is as follows, to wit: 'In case of loss under this policy and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected by the two so chosen; the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference unless waived by the parties shall be a condition precedent to any right of action in law or equity to recover for such loss; but no person shall be chosen or act as referee, against the objection of either party, who has acted in a like capacity within four months.'

"And the plaintiff further avers that, pursuant to said provision, he endeavored to have his loss determined by three disinterested men, and for that purpose, on the 24th day of December, A. D. 1903, submitted to said defendant company the names of three persons, all living in said Gorham, to wit, Harry W. Wilshire, Harry Day and Frank F. Johnson, one of whom said company could choose as one of the referees, and requested said company to submit to him the names of three persons, one of whom he would choose, and the two so chosen to choose the third, and that said defendant company utterly refused so to do and thereby prevented the plaintiff from having his loss or damage determined in accordance with said provision."

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, FEABODY, and SPEAR, JJ.

William Lyons, for plaintiff. Robert Treat Whitehouse, for defendant.

PEABODY, J. This case was an action of assumpsit brought upon an insurance policy to recover for loss of hay, sleighs, and carriages by an accidental fire.

The plea is the general issue and the case is before the law court on report by agreement and upon written stipulations of the parties according to which the sole question submitted is "whether or not the building wholly destroyed which it is admitted contained the carriages and sleighs for which the plaintiff seeks to recover was covered and included by the terms of the description of the policy in question, namely: "the frame building and addition situated on Depot street in Gorham, Me., and occupied as a livery and sale stable." If this building is covered by the terms of the description of the policy the plaintiff is entitled to recover for the loss of his sleighs and carriages the sum of $485, and the sum of $60 which is the admitted damage to the hay contained in the livery stable, if not he can recover only for the loss of the hay.

The plaintiff invokes the application of the familiar rule that an insurance contract should be in cases of ambiguity construed most favorably to the insured. Herrman v. Merchants' Ins. Co., 81 N. Y. 184, 37 Am. Rep. 488; Allen et al. v. St. Louis Ins. Co., 85 N. Y. 473; Rann et al. v. Home Ins. Co., 59 N. Y. 387; Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405, 88 Am. Dec. 337; 1 May on Ins. (3d Ed.) § 175. The plaintiff claims that there are three reasons supporting his contention in the case under consideration: First, that the building which was wholly destroyed was in connection with the larger building "used as a livery and sale stable," storing sleighs for sale being a part of the business; second, that it was the "addition" mentioned in the policy; and, third, that it was understood by himself and the agent of the company when the first policy and its renewal were issued that the required indemnity was in reference to property in this building.

It is necessary to look beyond the policy to ascertain whether in the use made by the plaintiff the building destroyed was a part of his livery and sale stable. It could be so considered only because its second floor was used by him for storing carriages preparatory to painting, and subsequently for permanent storage as a portion of the main stable was used, and its third floor was used by him for storing sleighs kept for sale, and because occasionally sales of carriages and sleighs were made by him in the building. The evidence shows that at the time of the fire, March 27, 1903, the lower floor of the smaller building was used by other parties as a harness shop and paintshop and one of the rooms of the second floor was reserved by the plaintiff for painting carriages and the third floor wholly used by him for storing sleighs and that he occasionally made sales of these carriages and sleighs in the building.

It may be doubted whether the language "used as livery and sale stable" included with the main building another 26 feet distant used in...