A. Perley Fitch Co. v. Phcenix Ins. Co.

• Decision Date: 04 May 1926
• Citation: 133 A. 340
• Parties: A. PERLEY FITCH CO. v. PHCENIX INS. CO.
• Court: New Hampshire Supreme Court

133 A. 340

A. PERLEY FITCH CO.

v. PHCENIX INS. CO.

Supreme Court of New Hampshire, Merrimack County.

May 4, 1926.

Transferred from Superior Court, Merrimack County; Burque, Judge.

Assumpsit on a fire insurance policy by the A. Perley Fitch Company against the Phoenix Insurance Company. Trial by jury, and verdict for plaintiff. Case transferred on defendant's exception to denial of motion for nonsuit and a directed verdict, to the admission of certain evidence, to remarks of plaintiff's counsel, to the refusal of court to give certain requests for instructions, and to the charge. Judgment for plaintiff.

See, also, 81 N. H. 495,128 A. 686.

Stevens, Couch & Stevens and Robert W. Upton, all of Concord, for plaintiff.

Warren, Howe & Wilson and McLane & Davis, all of Manchester, for defendant.

MARBLE, J. The policy as originally written insured property contained in the Optima building, which was situated on Pleasant street in Concord. At the former trial the evidence was conflicting as to whether the plaintiff's treasurer stated that he intended to remove the goods, or that he had actually done so. On the present transfer neither the words of the treasurer's request nor the circumstances under which it was made are in dispute. It may therefore be treated precisely as though it had been in writing. 2 Williston, Con. § 616; 6 R. C. L. 863; Steinfield v. Mills, 123 A. 224, 81 N. H. 152, 153.

The treasurer's language should be interpreted from the standpoint of the defendant's agent to whom it was addressed, and the reasonableness or unreasonableness of the construction which he placed upon it could in no way depend on uncommunicated facts. Gale v. Insurance Co., 41 N. H. 170, 174. The test was not what the treasurer intended his words to mean, but what a reasonable person in the position of the agent would have understood them to mean.

Since the standard is external, and no controversy existed in relation to the overt acts, all evidence of the plaintiff's actual purpose not called to the defendant's attention was inadmissible. Woburn Bank v. Woods, 89 A. 491, 77 N. H. 172; Lancaster & Jefferson Elec. Light Co. v. Jones, 71 A. 871, 75 N. H. 172; Marsh v. Insurance Co., 51 A. 898, 71 N. H. 253, 254; Hale v. Taylor, 45 N. H. 405, 406; Wadleigh v. Janvrin, 41 N. H. 503, 512, 77 Am. Dec. 780. The fact, however, that such evidence may have been admitted does not vitiate the verdict.

Three days before the fire, the plaintiff's treasurer took the policy to the office of the defendant's agent. He testified as follows:

"I passed it through the grill of the counter and told them I intended moving our goods from Pleasant street to the new location, and I wanted to be protected and covered in the new location."

The defendant, in its requests for instructions, concedes that what the treasurer said to the agent is not in dispute. This effectually disposes of any claim that it could be found that the treasurer's testimony on this point was untrue. There is not the remotest suggestion that the treasurer expressed a desire to have the goods uninsured while they continued to remain in the Optima building. The former opinion turns upon the agent's understanding that the goods had already been removed. Nothing of the kind appears in the present case, and, to interpret the treasurer's instructions as a positive injunction to cancel the risk in the old location, before the goods had been removed to the new, is to read into his words an order of material importance, which neither the words themselves nor the circumstances surrounding their utterance would warrant.

The defendant's argument that the motions for a nonsuit and directed verdict should have been granted because the plaintiff got the "one thing" it called for minimizes the fact that the goods were already insured. The primary meaning of the word "cover" is to overspread (15 C. J. 1339), and a literal compliance with the plaintiff's request was possible without a simultaneous cancellation of the original risk. Indeed, such inclusive protection is usually afforded by a so-called removal rider. 38 A. L. R. 1520.

The defendant knew that the plaintiff was not engaged in the insurance business, and that its treasurer was not likely to be versed in the technical terms of that occupation. The fact that he did not call for a removal rider as such was not significant; his words were to be considered in relation to the communicated facts and in their ordinary sense. Stone v. Insurance Co., 45 A. 235, 69 N. H. 438, 441; ...