Garrebrant v. Cont'l Ins. Co.

• Decision Date: 17 June 1907
• Citation: 75 N.J.L. 577,67 A. 90
• Parties: GARREBRANT v. CONTINENTAL INS. CO.
• Court: New Jersey Supreme Court

67 A. 90

75 N.J.L. 577

GARREBRANT

v. CONTINENTAL INS. CO.

Court of Errors and Appeals of New Jersey.

June 17, 1907.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Richard Garrebrant against the Continental Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Action upon a policy of fire insurance of the standard form. The defenses were that the policy was rendered void by the use of gasoline, and that no appraisement and award had been made as required by the policy. There was a verdict for the plaintiff for the full amount of the policy.

The fire seems to have been caused by the use of a gasoline torch by a painter who had been employed to paint the building insured by the policy and to remove the old paint. He began work May 23d. The fire occurred the next day. After the fire the parties entered into an appraisal agreement in the terms of the policy. Pox was selected as appraiser by the plaintiff and Gibson by the defendant. The umpire, Runyon, was appointed by the court in accordance with the statute. At a meeting of the three, a controversy arose, which resulted in the withdrawal of Gibson. Thereafter an award was made by Pox and Runyon, by which the loss was fixed at a sum in excess of the total insurance. There was no other evidence of the loss. Gibson testified that Pox, when they were with Runyon at the burned building, said that the loss was the face of the policy, to which he replied: "I don't agree with that. I have not made up my figures yet. We will go down and figure the thing out, and see how it comes out" Thereafter he testifies he agreed to take up the loss with Runyon and Fox, and they got a room at a hotel. He then testified as follows: "I asked Mr. Pox if he had any figures. Then I told him I would take it up in items, and I volunteered to take it up with Mr. Runyon, and I asked him if he had his figures, and he said he had. I said: 'Let me see what kind of a claim you have. I have no prices. Let me see how these items come out.' Mr. Fox objected to my having this paper, but I told Runyon, and he volunteered in handing me his book. I took it. Mr. Fox, in the meantime, had looked over and seen the sum of the sound value of Runyon's figures, and he says: 'Well, there is no use. I am satisfied to take your figures. Your figures we will stand by.' I said: 'Hold up. I have something to say about this matter. If I am a party to this appraisal, I want something to show to the companies what they are paying for. They expect me to do that.' And I took up two items with Mr. Runyon, and Fox said: 'There is no use bothering with this.' And he said: 'You and I will sign it.' And I said: 'All right.' I said; 'Do you want to sign it, Mr. Runyon?' He says: 'No; I won't sign it.' I said: 'I think this thing is off. I resign from this appraisement.' And Mr. Gebhardt—they sent for him—he came up and said: 'Go ahead with it Proceed with it.' I said: 'No; I am done.'" He also testified that on a prior occasion, the first day he met Fox, the latter told him the amount of the loss was more than the policy, and that he might then have said "we never can agree." He was asked why he called in the services of Runyon and conferred with the umpire, to which he replied: "I will tell you the reason why, because the umpire had been regularly appointed by the court, and it is just as I before stated, when I met him I made this statement to Mr. Runyon. I said: 'Mr. Fox is a farmer. He is a very good citizen and all that, but he is not a competent man to take hold of this thing and figure out the damage to the building; but,' I said, 'in order that you can understand this situation, if you afterwards come into this thing, I will take this list of items, and we will go over and see if it is covered'—which we did, and agreed all was in, with the exception of two or three items and some doors that Mr. Garrebrant called my attention to. Of course, we put them all in." The trial judge charged the jury that, even if they believed the burning of the paint increased the risk, yet the policy was not avoided if they believed that repainting was in reason required, and that in executing the work the removal of the old paint was reasonably required, and the method adopted for its removal was a reasonably safe and proper and a usual way to accomplish the work; that the naptha (or gasoline) was used on the premises, but that the question was whether the use was so reasonable and usual in the execution of this kind of work that the contract of insurance must be regarded as executed in view of that fact; that the umpire became entitled to join in making and signing an award only in case the two appraisers disagreed as to the amount of the loss, and that if what Gibson said to Fox was that he would not consent to saying that the loss was up to the amount insured off-hand, but would make his estimate from the data which he had made, there was then no disagreement, but that, if Gibson refused to agree with Fox that the loss was the face of the policy, the jury had a right to find that the two appraisers did disagree; that, if Gibson resigned in good faith, the award was invalid, but, this conduct in withdrawing was in bad faith, endeavoring to prevent the signing of the award, and to postpone further consideration for some arbitrary purpose, then Fox and Runyon had the right to make the award.

William C. Gebhardt, for plaintiff in error. Edward A. and William T. Day, for defendant in error.

SWAYZE, J. (after stating the facts). We think the case does not call for a decision of the question whether within the meaning of the policy the use of gasoline in the manner in which it was used increased the hazard, nor whether gasoline was kept, used, or allowed on the premises in contravention of the policy. Even if the contention of the defendant in these respects is correct, the policy is not avoided. In construing a writing, the whole must be construed together and in view of the reasons which led to the use of the language employed. The paragraph in the policy that contains the clauses above referred to provides, also, that the policy shall become void "if mechanics be employed in building, altering, or repairing the within described premises for more than fifteen days at any one time." This can hardly be construed otherwise than as permitting mechanics to be employed for the specified time. Prior to the adoption of the standard policy, it had been held by several courts that ordinary repairs did not avoid the policy, even where the fire hazard was obviously increased.

In Dobson v. Sotheby, 1 Moo. & M. 90, the policy was issued at a low rate payable for buildings wherein no fire was kept and no hazardous goods deposited. The buildings required tarring, a fire was lighted in the inside, and a tar barrel...