Fidelity & Casualty Co. v. Hartzell Bros. Co.

• Decision Date: 18 March 1924
• Docket Number: 17984
• Citation: 109 Ohio St. 566,143 N.E. 137
• Parties: The Fidelity & Casualty Co. Of New York v. The Hartzell Bros.Co.
• Court: Ohio Supreme Court

143 N.E. 137

109 Ohio St. 566

The Fidelity & Casualty Co. Of New York v. The Hartzell Bros.Co.

No. 17984

Supreme Court of Ohio

March 18, 1924

Insurance - Burglary - Limitation of liability for silk articles - Evidence inadmissible to contradict or interpret policy.

For the purpose of limiting liability, a policy of Insurance

contained a provision that its issuer should not be liable for any loss whatever on silks or articles made entirely or principally of that material. Held: That such provision is plain and unambiguous and that a loss of silk shirts was not covered under the policy; nor was parol evidence admissable to contradict such provision or to prove that the parties so interpreted it a to give coverage for silk shirts.

On December 20, 1919, the plaintiff in error issued to the defendant in error a policy of insurance against burglary covering a stock of goods which included clothing and gents' furnishings. The policy contained the following clauses:

"No 18. No change whatsoever in this policy nor waiver of any of its provisions shall be valid unless made in writing and signed by one of the said executive officers and indorsed hereon or added hereto; nor shall notice to any agent or knowledge possessed by any agent or by any other person be held to effect a waiver or change in this policy or in any part of it unless reduced to writing, signed as specified above, and indorsed here on.

"No 19(a). In amount of $3,000 to money and securities, and to the property hereinbefore defined provided that the company shall not be liable for any loss whatsoever on silks, furs, linen laces, silk laces, hand embroideries, feathers, silk velvets, or velours, or articles made entirely or principally of any of the said materials."

In April, 1920, a burglary occurred, resulting in a loss Of sundry goods, including 143 silk shirts of the value of $1,275.17. Suit was brought against the insurance company. The insurance company admitted liability for a part of the stolen goods, but under the above provisions of its policy denied liability for the value of the silk shirts. A jury was waived and the cause tried to the court, which, stating its findings of fact and conclusions of law separately, rendered judgment in favor of the defendant in error for $1,492.57, the amount claimed. That judgment was affirmed by the Court of Appeals. Whereupon error was prosecuted to this court.

Messrs. Nicholson & Warnock, for plaintiff in error. Mr. H. P. McCoy and Mr. Theodore A. Johnson, for defendant in error.

JONES J.

In order to escape the effect of the provisions of the policy the assured relied upon allegations and proof of estoppel, and the trial court found in its favor on that ground. Parol evidence was offered, over the objection of the defendant, tending to prove that plaintiff refused to accept the policy until it was assured that the loss of silk shirts was covered by the terms of the policy; that this assurance as to coverage and liability was made by a local agent upon the instructions of another agent who was resident manager for northern Ohio. The court found that the latter "represented to plaintiff...