Holmes v. Phoenix Ins. Co. of Brooklyn, N.Y.
| Decision Date | 20 November 1899 |
| Docket Number | 1,236. |
| Citation | 98 F. 240 |
| Parties | HOLMES v. PHENIX INS. CO. OF BROOKLYN, N.Y. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Sanford B. Ladd (John C. Gage and Charles E. Small, on the brief) for plaintiff in error.
M. A Fyke, Ed. E. Yates, C. V. Fyke, and E. L. Snider for defendant in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
The Phoenix Insurance Company of Brooklyn, N.Y., insured 'James T. Holmes against loss or damage by wind storms cyclones, or tornadoes' to the building described in the policy. The policy contains this provision: 'This company will not be liable for any loss or damage that may occur from hail or lightning, directly or indirectly, or by the blowing down of chimneys, loose clapboards, weather vanes and shingles, unless other damage occur. ' The building insured was damaged by a wind and hail storm, the chief damage occurring from the hail. The insured brought this action against the insurance company to recover for the damage done to the building by the hail as well as by the wind. The lower court instructed the jury that 'all damage done to this building which was the result of the injury done by hail is not recoverable in this action for the reason that the policies exempt the company from damage or loss from hail. ' The giving of this instruction was duly excepted to by the plaintiff, and is the only error assigned.
The contention of the learned counsel for the plaintiff in error is that, when it was shown that damage was done to the building by the wind, the company was also liable for the damage done by the hail; that the words in the clause of the policy last quoted, 'unless other damage occur,' are not restricted to the last member of the sentence, namely, to damage done by the wind other than that done 'to chimneys, loose clapboards, weather vanes and shingles,' but that those words relate back to the first member of the sentence, and include damage done by 'hail and lightning.' The clause will not admit of any such construction. The words, 'unless other damage occur,' are manifestly restricted to the last member of the sentence and refer to damage occurring from the thing insured against namely, 'wind storms,' and are operative when the wind has damaged the building over and above 'the blowing down of chimneys,' etc. The obvious meaning of these words is precisely the same as if the clause read, 'unless other damage occur' from wind. The last two words, which we have italicized, are plainly implied, and what is implied in a contract is as much a part of it as what is expressed. When the meaning of a statute or contract is perfectly plain and unambiguous, any ratiocination to make it plainer simply serves to make that...
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