J. Sidney Smith & Son v. Phœnix Ins. Co.

• Decision Date: 06 July 1914
• Docket Number: No. 11154.,No. 11148.,11148.,11154.
• Parties: J. SIDNEY SMITH & SON v. PHŒNIX INS. CO. OF HARTFORD, CONN. SAME v. CONTINENTAL INS. CO.
• Court: Missouri Court of Appeals

168 S.W. 831

181 Mo. A. 455

J. SIDNEY SMITH & SON v. PHŒNIX INS. CO. OF HARTFORD, CONN.

SAME v. CONTINENTAL INS. CO.

No. 11148.

No. 11154.

Kansas City Court of Appeals. Missouri.

July 6, 1914.

1. INSURANCE (§ 163) — CONSTRUCTION OF CONTRACT — RISKS.

A policy insuring plaintiffs' grain and seeds "while contained in" plaintiffs' elevator "and in cars on side tracks within one hundred feet of the above-described elevator" covered only cars within 100 feet of the elevator, and hence did not cover cars standing on a track running through the elevator, though not themselves within 100 feet thereof.

2. CONTRACTS (§ 147) — CONSTRUCTION — INTENTION.

In interpreting a contract, regard must be had to the object and intention of the parties in making it, as expressed in the writing employed to portray it and consistent therewith.

3. INSURANCE (§ 607) — PAYMENT — SUBROGATION.

Under a fire policy, by the terms of which the insurer on payment of the loss was to be subrogated to all rights of recovery by the insured against a railroad for loss, and by which the insured was to assign such right to the insurer on receiving payment, the insurer, on paying the amount found due from it, was subrogated

to all rights of recovery by the insured against the railroad.

4. INSURANCE (§ 603) — SUBROGATION — ASSIGNMENT BY INSURED — EFFECT OF RELEASE BY INSURED.

Under a fire policy providing that on payment of loss the insured was to assign to the insurer any rights against a railroad, the insured, who had obtained a judgment against the railroad for the full value of the property destroyed, and acknowledged full satisfaction of the judgment, rendering it impossible to perform his agreement to assign to the insurer any right or rights of recovery over, thereby released the insurer from liability for the loss.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by J. Sidney Smith & Son against the Phœnix Insurance Company of Hartford, Conn., and the Continental Insurance Company. Judgment for defendants, and plaintiffs appeal. Affirmed.

Harkless & Histed and Hogsett & Boyle, all of Kansas City, for appellants. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondents.

TRIMBLE, J.

Plaintiffs brought a suit against the above-named defendants upon a policy of insurance issued by each defendant respectively. The policies were both on the New York standard form, and covered the same property; and, the part of the policies in controversy being the same, the two suits were consolidated in the lower court and tried as one, and were brought here on appeal in that form.

The policies were issued and took effect on February 18, 1910, and were on plaintiffs' grain and seeds "while contained in the elevator of steel construction known as the Independent Elevator, situate on the right of way of the Chicago Great Western Railway of Omaha, Nebraska, and in cars on side tracks within one hundred feet of the above-described elevator."

On April 1, 1910, 20 cars of corn were purchased for plaintiffs by one Bushfield, acting as their broker. The grain was delivered by the seller to the Union Pacific Railroad Company, and it in turn delivered it to the Chicago Great Western Railway Company which set 17 of the cars on side track No. 7 Saturday afternoon, April 2, 1910. Sunday night 11 of the cars caught fire and were burned. These cars were coupled together in one continuous string, and were set by the railroad on side track No. 7, which ran to and through the Independent Elevator, but the cars were still in transit and in charge of the railroad company, since no reasonable time had been afforded for the unloading of the cars.

The Independent Elevator did not burn, nor did the fire originate there, but came from a source situated some distance south of the Independent Elevator. Plaintiffs had some corn in the Independent Elevator, but nothing therein was burned or damaged by fire, nor were any cars burned that were located within 100 feet of said elevator. All of the cars that burned were located more than 100 feet distant therefrom. The yards of the Chicago Great Western Railway extend south from the Independent Elevator for probably a half mile to the Union Pacific Railway; and for a distance of 250 feet east and west of the elevator the ground is covered with side tracks running the length of the yard. The policies aggregated $12,000. The value of the corn burned was $7,640.04.

Defendant's contention is that the corn destroyed was not covered by the terms of the policies; that the policies were intended to cover grain and seeds "while contained in the elevator of steel construction known as the Independent Elevator" and in cars located within 100 feet of "the above-described elevator." Plaintiffs contend that the 100 feet refers to tracks that close to the elevator. The question is: Did the contract mean the cars were to be within 100 feet of the elevator, or merely that the side track on which the cars were standing must run within 100 feet thereof?

In getting at the interpretation to be placed on a contract, regard must be had to the object and intention the parties had in making it, as expressed in the writing employed to portray it and...