Franklin Fire Insurance Co. v. Updegraff et al.
| Decision Date | 17 November 1862 |
| Citation | 43 Pa. 350 |
| Court | Pennsylvania Supreme Court |
| Parties | Franklin Fire Insurance Company <I>versus</I> Updegraff <I>et al.</I> |
This was an action of covenant upon a policy of insurance, and the defendants in the court below have brought the record here, assigning seven errors. None of the assignments, however, are properly made. They aver that the court erred in their answers to each of the six points submitted, but they do not specify how the court erred, or in what the alleged mistakes consisted. This mode of assigning errors is altogether insufficient. It would be at common law, and it is if possible even more so under the rules of this court. It compels us to gather the complaints of the plaintiffs in error rather from their arguments than from the record, and tends to obscure the matters really in controversy. Passing this by, however, in the present case, we proceed to consider the particulars in which it was alleged on the argument that the court below had fallen into error.
On the trial it was of course a question whether the merchandise insured was destroyed in the building covered by the description in the policy. This was necessarily a question for the jury, and to the jury it was submitted with instructions in substance that if the tenement in which the property was destroyed was a different building from that described in the policy, there could be no recovery. The building was described in the policy as "on the south-east corner of Third street and Sugar alley." The store-room immediately on the corner with the rooms above it, appear to have been occupied by Mr. Higgins, and the merchandise of the plaintiffs was in store-rooms adjoining on the east. The goods may still, however, have been in the same building, for it is quite possible for one building to contain several store-rooms. We find no evidence that the store-rooms were so separated as to make them parts of different buildings. No witness testified that they were under different roofs, that they belonged to different owners, that they were erected at different times, or that there was any substantial and permanent partition dividing them. But it is said there was no evidence, that is, affirmative evidence, that the store-rooms of the assured and of Mr. Higgins were in the same building, and hence it is inferred there was error in submitting to the jury to find that they were. We think there was some such evidence at least furnished by one of the drafts, enough to warrant the submission of the question to the jury. Nor can we overlook the fact that the description in the policy names a "building," not a store-room, the most comprehensive term which could have been employed. If there be any uncertainty whether all the store-rooms were intended, or only those occupied by Higgins, it is fatal to the case of the insurers, for the language of the policy is theirs, and it is to be construed most strongly against them: Cropper v. The Western Insurance Company, 8 Casey 351.
There is another fact in the case which satisfactorily shows that the policy was understood by the insurers as covering the goods in the rooms in which they were destroyed, and which therefore tends to show that they were in the building described....
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