North British & Mercantile Ins.Co v. Tye

• Decision Date: 13 February 1907
• Docket Number: (No. 24.)
• Citation: 58 S.E. 110,1 Ga App. 380
• Court: Georgia Court of Appeals
• Parties: NORTH BRITISH & MERCANTILE INS.CO. v. TYE.

58 S.E. 110

(1 Ga App. 380)

NORTH BRITISH & MERCANTILE INS.CO.

v.TYE.

(No. 24.)

Court of Appeals of Georgia.

Feb. 13, 1907.

1. Insurance—Policy Construction.

Insurance is a matter of contract. An insurance policy is a contract of indemnity for loss, and the intention of the parties, if it can be ascertained, must determine the sense in which the terms employed are used. This intention of the parties must be sought for in ac-.cordance with the true meaning and spirit in which the agreement was made and expressed in the written instrument, and the ordinary and legal meaning of the words employed must be taken into consideration.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 172, 292.]

2. Same—Property Insured.

In the absence of proof that it was the intention of the parties to include houses disconnected with a "two-story frame building and its additions adjoining and communicating, " a contract thus describing the insured property will not be construed to include a servant's house 150 feet distant from the two-story frame building, although occupied exclusively by domestic servants employed in the dwelling house of the assured, and although connected therewith by a system of call bells.

[Ed. Note.—For cases in point, see Cent Dig. vol. 28, Insurance, §§ 339-341.]

3. Same.

In gome cases the valuation of the property and the premium collected thereon may be submitted to the jury, in ascertaining the intention of the parties, in addition to the intention to be drawn from the words used to describe the property insured in the policy. (Syllabus by the Court.)

Error from City Court of Atlanta; Reid, Judge.

Action by Carrie W. Tye against the North British & Mercantile Insurance Company. Judgment for plaintiff. Defendant brings error. Reversed.

King, Spalding & Little, for plaintiff in error.

Spencer R. Atkinson and John L. Tye, for defendant in error.

RUSSELL, J. The question in this case is one of liability or nonliability under a state of facts undisputed. Mrs. Carrie W. Tye brought suit on two policies of insurance which she had on her dwelling at 740 Peach-tree street, in the city of Atlanta, and the result of the issue depends upon the construction which is to be placed upon the descriptive terms of these insurance policies. The property insured was described in one of them as "$4,000 on her two-story frame, shingle-roof building and additions thereto, occupied by assured as a dwelling only, and situated at No. 740 on the west side of Peach-tree street in Atlanta, Georgia, " the other as "$4,000 upon the two-story shingle-roof frame building and its additions adjoining and communicating, while occupied as a dwelling-house, and situated at No. 740 on the west side of Peachtree street, Atlanta, Georgia." The lot upon which the dwelling in question stood fronts 80 feet on Peachtree street, and extends back 400 feet to another street. The main dwelling occupied the front; and commencing at the rear of the house and extending around the entire lot to the rear of the house was a plank inclosure. In the rear of the dwelling and within this inclosure, at a distance of about 150 feet, was a one-story two-room servant house, which at the time of the fire was occupied by the domestic servants of the assured. This servant's house, which was entirely apart from the dwelling or any other building, was connected with the dwelling by two wires and electric call bells, by which the servants might be called and could respond. On the other side of the lot there was a barn, 40 or 50 feet from the house, used for stables and the storage of the family vehicles. It was not connected with the house by means of electric bells or otherwise. A chicken yard about 15 feet square, surrounded by a wire net fence, was situatedbetween the dwelling and the servant's house, about 50 feet from the dwelling. It was in proof that no one dwelt in the barn. On November 22, 1903, a fire occurred, partially destroying the servant's house. The amount of the loss was $228. A demand was made for indemnity. One other insurance company, which had issued a policy for a like sum as these two policies above described, paid its pro rata share of the loss, leaving $152 claimed to be due by the defendant company. The company admitted the amount of the loss, but on January 8, 1904, denied its liability, placing its denial on the ground that the servant's house above referred to was not within the terms of and was not insured by its policies. The case was tried in the city court of Atlanta on March 29, 1906. At the conclusion of the plaintiff's evidence, which presented the case above stated, the defendant moved for a nonsuit, upon the grounds that the plaintiff had not made out a case, and that the facts showed that the servant's house was not insured by the policies introduced. The court refused to nonsuit the case, and, on plaintiff's motion, directed a verdict in her favor for $152, with interest from January 8, 1904. The defendant company, now plaintiff in error, brings the case here, alleging error in the refusal of nonsuit and in the direction of the verdict; the error, as insisted, being that the servant's house is not covered by the policies sued on. The sole question for determination, It will be seen, is this: Was the servant's house, above referred to, covered by the terms of the policy?

The policies are slightly different in form of expression. They are both upon the same building, and in one the insurance extends to "additions thereto, " and in the other to "its additions adjoining and communicating." To put the question more exactly from the contract of insurance: Do the words "the two-story shingle-roof frame building and its additions adjoining and communicating, " and "her two-story frame shingle-roof building and additions thereto, " cover a servant's house situate 150 feet distant, and only connected therewith by two small wires? The plaintiff in error contends that the words do not so signify; that such a separated independent structure is in no legitimate sense either an "addition to the two-story frame shingle-roof building" or one of "its additions adjoining and communicating." The defendant in error insists that either form of expression necessarily includes the house in question, as a component part of the domestic establishment, and that without the use of the word "addition, " whether communicating or adjoining, or otherwise; "that the subject of the Insurance was a dwelling house, and that, as the words 'dwelling' and 'dwelling house' signify habitation, the meaning of neither can be confined by construction to a single apartment, but comprehends the entire congrega tion of buildings, main and auxiliary, used for the purpose of abode."

Led into a comprehensive view of the question by the very scholarly brief of the learned counsel for the defendant in error, we have made a somewhat extended examination of the authorities, and have been much interested in the definition of the term "dwelling house." We have carefully considered the various authorities cited by the counsel for defendant in error to sustain his position, and it is plain that in certain senses the term "dwelling house" may embrace a cluster of buildings. In the case of Workman v. Insurance Company, 2 La. 507, 22 Am. Dec. 141, it was held that the word "house, " in the" common, ordinary acceptation of the term, embraces everything pertinent and accessory to the main building, and that this is the significance that must be given to it when used in policies of insurance. And Mr. Bishop defines a "dwelling house" as "a permanent building or cluster of buildings in which a man with his family resides. He need not so construct his habitation that all the shelter he requires will be under one roof. Therefore the words 'dwelling house' embrace in law the entire congregation of building, main and auxiliary, used for abode." And upon the same line the words "dwelling house" will be found to be defined by numerous other law-writers, such as Bouvier, An-gell, and Black. In our opinion the words have a meaning in Georgia which varies with the sense in which they are used. There is one significance attached to the word "dwelling" when considered in connection with the charge of burglary. There the breaking of any house within the curtilage makes complete the offense, provided such breaking be with the criminal intent specified in the statute. There is another meaning in connection with the offense of arson, dependent upon its occupation; and, excepting these two special meanings, there is the use of the word and its significance as commonly used and popularly understood, which, as we will show hereafter, will not include houses disconnected from those occupied by the family. But we think the decision of this case does not depend upon the definition of the word "dwelling house, " because the building insured is not only said to be a "dwelling, " but it is further described and identified by the words "her two-story frame, shingle-roof building and additions thereto, " in one policy, and "the two-story shingle-roof frame building and its additions adjoining and communicating, " in the other policy. So that the real question is, not whether a cluster of disconnected houses may or may not in some instances constitute a "dwelling house" (to which proposition we fully agree), but whether it can be fairly understood as a part of the contract of insurance that "a two-story frame building and its additions, " used as a dwelling house, shall also include a servant's house 150 feet away, so as to render the insurer liable for damage by fire to the servant's house, though there was no fire or damage to the two-story frame building. Wherever there is a doubt as to the meaning of words, they are to he given their ordinary significance; and policies of insurance, notwithstanding the peculiar language in which they are generally couched, are at last but written contracts, to be...