Sincoff v. Liberty Mut. Fire Ins. Co.

Decision Date12 June 1962
Citation230 N.Y.S.2d 13,11 N.Y.2d 386,183 N.E.2d 899
Parties, 183 N.E.2d 899 Jacob SINCOFF et al., Appellants, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent.
CourtNew York Court of Appeals Court of Appeals

Stuart F. Cartoon, Tarrytown, Louis A. Tepper and Emanuel Baetich, New York City, for appellants.

John Nielsen and Thomas O. Perrell, New York City, for respondent.

FOSTER, Judge.

Upon discovering that carpet beetles had damaged a pair of antique armchairs, an 18th Century Aubusson tapestry, and an expanse of imported broadloom carpeting, plaintiffs commenced this action for indemnity under an 'all-risk' personal property floater insurance policy. The policy insured to total limits of $382,818 all 'personal property owned, used or worn by the persons in whose name this policy is issued, hereinafter called the Insured, and members of the Insured's family of the same household, while in all situations, except as hereinafter provided' against 'all risks of loss of or damage to property covered, except as hereinafter provided.' Excluded by paragraph 6(g) were losses caused by 'deterioration, moth, vermin and inherent vice'.

The parties stipulated that due notice of the loss was given to the insurer, and that plaintiffs suffered damages in the sum of $2,000. The insurer, however, contended that damages by carpet beetles fell within the clause excluding damage caused by 'vermin'. Whether or not 'carpet beetles' fall within the category of 'vermin' as that term is used in this all-risk personal property floater policy is the sole issue in this case.

After a nonjury trial, judgment was rendered for plaintiffs in the sum of $2,000. The Appellate Division, by a divided court, Reversed upon the law and upon the facts and dismissed the complaint. Plaintiffs appeal as of right.

At the trial, plaintiffs' expert, an exterminator who had taken courses on the subject of vermin and moths, testified that carpet beetles and moths are members of the insect world; that only a certain category of insects are vermin; that vermin, as used in connection with insects, includes only those which are parasitic or are to be found in close connection with the human body; that this includes bed bugs, lice and fleas, which might suck blood or become imbedded in a person's clothing and that a carpet beetle feeds on dead animal matter such as wool, silk, felt and leather, and is not associated with any portion of the human body. He further testified fabric pests. In his opinion, a beetle as fabric pests. In his opinion, a beetle would not be classified as 'vermin' by an entomologist. The witness agreed with Funk and Wagnall's definition that vermin are 'obnoxious insects, especially parasitic, as lice, fleas and bed bugs', but disagreed with Webster's definition of 'vermin' as 'any noxious, mischievous or disgusting animal, that is lice, bed bugs, fleas, house flies', on the ground that flies are not parasitic.

Defendant also produced an expert, a research associate in the Department of Insects and Spiders, American Museum of Natural History. The expert testified that a carpet beetle is a member of the coleopterous group of insects which frequently infest carpets; that the carpet beetle is not a 'month'; that the carpet beetle is not a parasite, but rather attacks material; that parasites such as bed bugs, fleas and lice do not feed on fabrics; that 'vermin' may be used as a term to denote an insect which infests material causing damage to the man who prizes it; and that he would include carpet beetles in the category of vermin, because they destroy material possessions important to humans. He acknowledged that 'vermin' is not a acientific term, but rather that it is a popular colloquial expression with loose and varied popular and dictionary definitions.

Webster's New International Dictionary (2d ed., Unabridged, 1956) defines the word vermin as 'n(oun) * * * 1. Any noxious, mischievous, or disgusting, animal * * * 2. Specif.: Such an animal, or esp. such animals collectively, when of small size, of common occurrence, and difficult to control. Various insects as flies, lice, bedbugs, fleas, etc., various mammals, as rats, mice, weasels, etc., and sometimes such birds as hawks and owls, are classed as vermin.'

Funk and Wagnall's New Standard Dictionary, at page 2644, defines vermin as '1. * * * Obnoxious insects, especially parasitic ones, as lice, fleas, or bedbugs. (2) (Eng.) Animals destructive to game, as weasels, polecats, badgers, otters, hawks, or owls. (3) (Austral.) Animals injurious to vegetation or to domestic animals.'

In England, the word 'vermin' has been defined by statute as follows: "vermin' includes bugs (bedbugs), fleas, lice and itch mites and their eggs, larvae and pupae'. (Public Health (London) Act, 1936, 26 Geo. 5 & 1 Edw. 8, ch. 50, § 304, subd. (1); 15 Halsbury's Statutes of England (2d ed.), p. 1034). These creatures, constituting 'vermin' under the English definition, all are parasitic in nature.

As indicated, experts well versed in entomology disagree as to the meaning of the word, and the dictionaries contain varying connotations, some indicating that vermin includes all bothersome insects, others...

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