Levinton v. Ohio Farmers Insurance Co.

• Citation: 110 A. 295,267 Pa. 448
• Decision Date: 26 May 1920
• Docket Number: 279
• Parties: Levinton et al., Appellants, v. Ohio Farmers Insurance Co
• Court: United States State Supreme Court of Pennsylvania

110 A. 295

267 Pa. 448

Levinton et al., Appellants, v. Ohio Farmers Insurance Co

No. 279

Supreme Court of Pennsylvania

May 26, 1920

Argued March 25, 1920

Appeal, No. 279, Jan. T., 1920, by plaintiffs, from judgment of C.P. No. 2, Phila. Co., Dec. T., 1918, No. 4352, refusing to take off nonsuit, in case of William and J. Levinton trading as Union Novelty Manufacturing Co., v. Ohio Farmers Insurance Co. of Le Roy, Ohio. Affirmed.

Assumpsit on a policy of fire insurance. Before BARRATT, P.J.

The opinion of the Supreme Court states the facts.

At the trial the trial judge entered a compulsory nonsuit which the court subsequently refused to take off. Plaintiff appealed.

Error assigned, inter alia, was refusal to take off nonsuit, and rejection of offer of evidence noted in the opinion of the Supreme Court, quoting the record.

The judgment is affirmed.

Arthur S. Arnold, for appellant. -- As a party to a contract of insurance is indemnified against loss by fire, if the provisions of the contract are susceptible to two or more interpretations, that one should be adopted that will make the contract effective for the protection of the insured McKeesport Machine Co. v. Ben Franklin Ins. Co., 173 Pa. 53; Line Lexington Ins. Co. v. Eastburn, 3 Walker 88; Meadowcraft v. Standard F. Ins. Co., 61 Pa. 91; W. & A. Pipe Line v. Home Ins. Co., 145 Pa. 346; Graybill v. Penn T. Mut. F. Ins. Co., 170 Pa. 75.

In Pennsylvania it has often been decided that in spite of the provisions of the policies, an agent may bind his company by a parol waiver: Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; McFarland v. Kittanning Ins. Co., 134 Pa. 590; Burson v. Fire Assn., 136 Pa. 267; Dowling v. Merchants Ins. Co., 168 Pa. 236; Mix v. Royal Ins. Co., 169 Pa. 639; Spring Garden Ins. Co. v. Scott, 1 Walker 181; Highlands v. Lurgan Mut. F. Ins. Co., 177 Pa. 566.

Horace Michener Schell and Albert L. Moise, with them Walter Biddle Saul, for appellee.

Before BROWN, C.J., MOSCHZISKER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE KEPHART:

Plaintiff owned a broom-making plant, which, at the time the policies here sued on were taken out, consisted of a factory, a small bleaching house and a large warehouse 30 by 150 feet, the latter building situate about 100 feet from the factory building. Insurance was placed on a part of this property by the defendants, the policies covering all "merchandise, stock, materials and supplies, chiefly broom corn, their own or held in trust or on consignment or sold but not removed, contained in frame warehouse building detached about one hundred feet from Factory Building, Atco, Camden County, New Jersey."

In February, 1918, because of its defective condition, the warehouse was torn down and two smaller buildings erected: No. 1, situate on the site of the old building, and No. 2, located about 100 feet from No. 1 and about the same distance from the factory building. During the period of construction, the broom corn was removed to near-by barns, and upon the completion of the buildings it was returned to the two new warehouses. No. 1 contained the broom corn for immediate use and No. 2 that for storage. When the broom corn was deposited in barns during the construction, the change on the policies was provided for by a writing called a "binder," and, when the new warehouses were completed, the binders were removed and specific insurance was taken out on No. 1 and No. 2; and the old policies were put in force "to cover as originally written." Later, the contents of building No. 2 were destroyed by fire and it is claimed that the loss was covered by the original policies of insurance, containing the above clause, or that the company was estopped from asserting the contrary, because of statements made by the counterman, an employee of the defendant's subagent.

To determine whether the policies insuring merchandise in the premises herein mentioned (issued when such merchandise was contained in a building situated as described), will cover a part of the same merchandise contained in another building (erected as above stated subsequent to the issuance of the policies), regard must be had to the meaning of the language employed, the apparent purposes of the parties, the situation and uses of the property, and the nature of the contract as evidenced by the policy. Recovery can be had only when the loss is brought fairly within the terms of the contract or by reasonable intendment covered by it. If doubt exists as to the meaning, it should be resolved in favor of the assured rather than in the interests of the insurer. The Standard Policy Act does not modify this principle, as the subject-matter of insurance is expressed in the language of the insurer. The plain provisions of the policy insured broom corn, contained in the frame warehouse building 100 feet from the factory building. This language is clear and unambiguous and cannot be construed to mean otherwise than what it says. Had it been an agreement of sale, it could hardly be contended that it would include broom corn in another building. If it was not the continuing presence of the broom corn in the building mentioned, why the necessity of adding the words "but not removed" after "broom corn . . . held in trust or on consignment or sold," and why was authority given to make additions, alterations and repairs to the building and this policy to cover the same (broom corn), if the insurer did not intend to limit its liability to broom corn contained in the frame warehouse building detached about 100 feet from the factory building? The language was not merely descriptive of the subject-matter, but the words used, with...