J. Sidney Smith & Son v. The Phoenix Insurance Co.
| Decision Date | 06 July 1914 |
| Citation | 168 S.W. 831,181 Mo.App. 455 |
| Parties | J. SIDNEY SMITH & SON, Appellants, v. THE PHOENIX INSURANCE COMPANY, Respondent, and J. SIDNEY SMITH & SON, Appellants, v. THE CONTINENTAL INSURANCE COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn Judge.
AFFIRMED.
Judgment affirmed.
Harkless & Histed and Hogsett & Boyle for appellants.
Lathrop Morrow, Fox & Moore for respondents.
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, twenty 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 seventeen of the cars on side track No. 7 Saturday afternoon April 2, 1910. Sunday night eleven 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 $ 12000. 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 one hundred feet of "the above described elevator." Plaintiffs contend that the one hundred feet refers to tracks that close to the elevator. The question is did the contract mean the cars were to be within one hundred 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 consistent therewith. [Ellis v. Harrison, 104 Mo. 270, l. c. 279.] The primary purpose of these policies was to insure grain while contained in this particular elevator, and secondarily it covered grain in cars within 100 feet thereof. The locus of the fire insured against was at or within 100 feet of the elevator. Plaintiffs construction would take out of the contract the element of any particular place at which defendant would insure against fire. If, on either side of the elevator and within 100 feet of it, a track ran for any distance however great from the elevator, the policy would cover a car sitting thereon no matter where located nor how hazardous the surroundings, according to plaintiffs' construction. Plaintiffs had corn in the elevator, the policies were issued February 18, 1910, while the corn that was burned April 3, 1910, had not been purchased, and it cannot be said that the policies covered that particular corn. The fire did not originate, nor did it injure anything in or near the locus of the elevator. The grain first mentioned in the policies is grain while contained in a certain named elevator of steel construction. And it is perfectly reasonable that defendants would be willing to insure corn located within a radius of 100 feet of that place, and unreasonable that it would extend that locality without regard to dangerous surroundings and limit such locality only by the fact that a track ran close to the elevator...
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