Rochester German Ins. Co. v. Peaslee Gaulbert Co.

• Decision Date: 15 June 1905
• Citation: 120 Ky. 752,87 S.W. 1115
• Parties: ROCHESTER GERMAN INS. CO. v. PEASLEE GAULBERT CO. NATIONAL FIRE INS. CO. v. SAME. PACIFIC FIRE INS. CO. et al. v. LOUISVILLE LEAD & COLOR CO.
• Court: Kentucky Court of Appeals

87 S.W. 1115

120 Ky. 752

ROCHESTER GERMAN INS. CO. v. PEASLEE GAULBERT CO.

NATIONAL FIRE INS. CO. v. SAME.

PACIFIC FIRE INS. CO. et al. v. LOUISVILLE LEAD & COLOR CO.

Court of Appeals of Kentucky.

June 15, 1905

Appeal from Jefferson Circuit Court, Common Pleas Branch, Third Division.

Appeal from Jefferson Circuit Court, Common Pleas Branch, First Division.

Appeal from Jefferson Circuit Court, Common Pleas Branch, Second Division.

"To be officially reported."

Actions by the Peaslee Gaulbert Company and by the Louisville Lead &amp Color Company against the Rochester German Insurance Company and others. From judgments in favor of plaintiffs in each case, defendants appeal. Judgment affirmed as against the National Fire Insurance Company and the Pacific Fire Insurance Company, and reversed as to the Rochester German Insurance Company.

Gibson Marshall & Gibson, Bodley, Baskin & Flexner, and A. S Brandeis, for appellants.

Humphrey Hines & Humphrey and Trabue, Doolan & Cox, for appellees.

O'REAR J.

The Peaslee-Gaulbert Company and Louisville Lead & Color Company are distinct corporations, but operating together a plant for the manufacture and sale of paints, oils, and so forth. The plant consisted of three buildings, located at Fifteenth street and Portland avenue, in Louisville. The buildings were separated by alleys, occupied by railroad tracks, but were connected by overhead bridges, with doors at their ends. Two of the buildings, one owned by the Peaslee-Gaulbert Company, known as the "Fifteenth Street Warehouse," and another owned by the Louisville Lead & Color Company, known as the "factory" building, were also physically connected, in addition to the bridges mentioned, by a belt canopy extending from one building to the other, and formerly used to shelter a belt operated from the factory building, so as to run a pulley and elevators in the warehouse building. It had not been used, though, for some time, and was left so that it afforded an opening from one building to the other, the canopy or chute constituting a sort of flue or vent. All the properties, including the contents of the Fifteenth street warehouse building, were insured against loss or damages by fire under a number of policies issued by various companies, including the policies sued upon in these actions. The policies are identical in terms. Two of the cases (National Fire Ins. Co. v. Peaslee-Gaulbert Co. and Pacific Fire Ins. Co. v. Louisville Lead & Color Co.) present the same sole question for decision on this appeal. The other case, Rochester German Ins. Co. v. Peaslee-Gaulbert Company, presents the same question and one other. Hence the appeals are heard and decided together, though coming from different branches of the circuit court.

The question for decision that is common to all the cases is the construction of the term "noon" contained in the clauses of the policies which reads, "does insure [the insured] from the first day of April, 1901, at noon, to the first day of April, 1902, at noon." A fire occurred in the insured premises on April 1, 1902, by which all the insured property was totally lost. Whether the loss occurred before "noon" of that day is the question. The fire originated in the "factory" building at about 11:45 a. m., standard time. The alarm was turned in at the fire department of the city at 11:59 a. m., standard time, according to the records of that department. The difference between central standard time, based upon the mean time of the ninetieth meridian west of Greenwich, and mean solar time at Louisville, is 17 1/2 minutes. So that at 11:45 a. m., standard time, it would be reckoned 12:02 1/2 p. m., sun time at Louisville. In declaring upon the policies plaintiffs pleaded: "The plaintiff states that the word 'noon' contained in said policy, and at the time said policy was issued, had two meanings, largely dependent upon the community in which said word was used. One of these meanings was 12 o'clock midday by what is commonly called 'sun time,' and one was 12 o'clock midday by what is commonly called 'standard time.' Said fire occurred after 12 o'clock midday, sun time, and before 12 o'clock midday, standard time, as was in use in Louisville, Ky. where the property destroyed and damaged was situated. At the time said policy was executed and delivered the word 'noon,' as used in the city of Louisville, in business transactions, in making engagements, and in ordinary speech and writing, was understood to mean 12 o'clock midday, standard time, and such was the sense in which the parties to the policy sued on used said word in said policy." The contention of appellants is that the word "noon" has a fixed, certain, and universally understood meaning, having reference alone to the physical fact of the coincidence of the center of the sun's circle with a given meridian of the earth; that proof of custom cannot be admitted to alter or contradict plain, unequivocal words, when used in a written contract in their ordinary sense.

Authorities are abundant to the effect that words of well-understood meaning in their ordinary sense may, by the custom of a class, trade, or profession, have a peculiar and different meaning when used with reference to the custom or general dealing of such trade or profession, and evidence may be received to show such exceptional use and meaning. Tradesmen artisans, and professionals of various callings give to certain ordinary words a meaning peculiar to their calling or trade, and in contracts may use such words altogether with reference to such terminology. It would be a miscarriage of justice not to construe such words as they were understood and used by the parties, as otherwise they would be held to have made a bargain which neither ever contemplated. But the proposition here is not to limit a word of common meaning to the use of a particular business sect, who, by its employment, have imparted to it a peculiar meaning, different from its general one, when employed by them to express an idea or fact in the course of their business. On the contrary, it is that a word of most common use has come to have a general meaning, common to everybody, differing from its original meaning, and therefore presumably used by the parties to a contract in its most common and general sense. The construction of words in a written contract is for the court, generally. If ambiguous, the meaning intended may be gathered by the aid of parol or other extrinsic evidence. Or, if used in a sense peculiar to some special calling or trade, as has been seen, the custom may likewise be shown, by parol, which has given the word its extraordinary meaning in the case. The word now under consideration had for a great many years only one meaning, which was undoubtedly the one intended for in the case by appellants. But for the last 10 or 15 years, as the court will take notice, the custom has grown to be well-nigh general throughout the country to give the word "noon" a slightly different meaning. Both meanings refer to the same fact; that is, midday. The division of time into days of 24 hours each is itself conventional. Nor has it been uniform always to divide it so that the day began at midnight. While it may be possible to divide the calendar year into days of exact equal length for all practical purposes, no clock has as yet been made that records accurately the apparent movement of the sun, or, strictly, the movement of the earth with respect to the sun, so that the relative position of those bodies is shown exactly day after day. As the coincidence of the sun with any given meridian of the earth varies daily, a clock or other timepiece which is not made to vary correspondingly-- and none does that we know of--will not accurately record the fact of such coincidence probably more than twice in each year. It would be impracticable to attempt to apply to the ordinary affairs of life a system of marking time that had to depend upon difficult mathematical and astronomical calculations to determine the exact time, when time was an element of a fact to be determined. Instead, a system of mean or average time has been adopted always. It represents approximately by averages the relative positions of the sun and the earth's meridian. The names given to the system and its variations have been adopted by an extending of their use until by custom they have become general; words constructed to represent such...