Throop v. North American Fire Ins. Co.

• Decision Date: 04 January 1871
• Citation: 22 Mich. 146
• Court: Michigan Supreme Court
• Parties: The North American Fire Insurance Company v. George B. Throop

22 Mich. 146

The North American Fire Insurance Company v. George B. Throop

Supreme Court of Michigan

January 4, 1871

Heard October 19, 1870

Error to Lenawee circuit.

This was an action of assumpsit, upon a policy of insurance brought by George B. Throop, in the circuit court for the county of Lenawee, against the North American fire insurance company, of the city of New York. The amount and property insured was stated in the declaration to be: "five hundred dollars on his three-story brick and frame building situated on the east side of South Main street, near the Michigan Southern & Northern Indiana railroad company, in the city of Adrian, used as a steam bending factory, and two thousand five hundred dollars on lumber and stock of felloes poles, bows and shafts, manufactured and in process of manufacture, contained in the above named building."

The defendant pleaded the general issue, and gave notice that the policy of insurance "was made and issued upon an application therefor, signed by said plaintiff, and made by the terms of said policy, and said application, a part of said policy and a warranty, and that in and by said application the plaintiff represented and warranted, amongst other things: * * *

"10th. That said property was mortgaged to the amount of two thousand dollars, and no more.

"11th. That the only mortgage on said property was to Topliff & Day.

"12th. That said plaintiff had no reason to believe that the property was in danger from incendiarism.

"And the said defendant will further give evidence and show that each and every of said representations was untrue, and each and every of said warranties broken."

The cause was tried by a jury, who, under the charge of the court, found a verdict for the plaintiff for $ 3,570.50, and a judgment was entered thereon which is brought into this court by writ of error. The questions for review upon the admissibility of evidence, and the charge of the court, are fully stated in the opinion.

Judgment reversed, with costs, and a new trial ordered.

Ashley Pond, for plaintiff in error.

A. L. Millard and G. V. N. Lothrop, for defendant in error.

OPINION

Cooley, J.

This record is brought before us by writ of error for a review of certain rulings by the circuit court on the trial of an action upon a policy of insurance. The policy, it appears, was not produced on the trial, and was claimed to have been destroyed by the fire which burned the property insured, and parol evidence was, therefore, given of its contents.

The declaration averred that the insurance company, the defendant below, insured the plaintiff "against loss or damage by fire to the amount of three thousand dollars; that is to say, five hundred dollars on his three-story brick and frame building, situated on the east side of South Main street, near the Michigan Southern & Northern Indiana railroad company, in the city of Adrian, used as a steam bending factory, and two thousand five hundred dollars on lumber and stock of felloes, poles, bows and shafts manufactured, and in process of manufacture, contained in the above named building." The plaintiff having given evidence of the loss of the policy, testified to its contents as follows: "The written part of the policy was, as near as I can remember, as follows: The rate was three and a half per cent; the whole consideration one hundred and five dollars. The whole amount insured was three thousand dollars, which was distributed as follows: five hundred dollars on three-story brick and frame building, situate on South Main street, near the Southern railroad track and adjoining. It was on the east side of Main street. It stated that the building was used for steam bending works. There was also two thousand five hundred dollars' insurance in said policy on the stock, lumber and goods manufactured and in process of manufacture in said building. The stock consisted of bows, poles, felloes, shafts, etc. I don't remember whether these items were specified in the policy, but they were in the building." Having thus stated the terms of the contract as near as he professed to be able to do so, the plaintiff proceeded to give the particulars of the loss. After stating the value of the goods manufactured and in process of manufacture, in the building at the time of the fire, he proceeded to say: "I also had a hundred thousand of lumber which cost me about twenty-four dollars per thousand, and was worth about thirty dollars. About one-third of it was in the lower story of the building, the rest in the yard."

The plaintiff, it appears, claimed that the lumber in the yard, as well as that in the building, was covered by the policy. To establish this claim the following questions were put to the plaintiff while on the stand, and the subjoined answers elicited:

"Question--Did you show Collyer (the agent who took the insurance) the lumber outside as well as inside the building, and did he examine it for the purpose of insuring?"

"Answer--He was down there several times, and looked the place over two or three times, outside as well as inside the building, and took its general surroundings."

"Question--What did you state to him you wanted insurance upon?"

"Answer--On the whole property; on the lumber outside as well as inside the building. It would be outside one day and inside the next."

These questions and answers were objected to as incompetent, but the objections were overruled.

We have been unable, after considerable reflection, to discover any ground upon which the rulings in admitting this evidence can be sustained. It is conceded that it was not competent to extend or enlarge by parol the terms of the written contract, but it is argued that the case comes within the principle of those cases of which Facey v. Otis, 11 Mich. 213, affords an example, in which parol evidence has been received to show the circumstances under which a contract has been made, for the purpose of explaining its contents where ambiguous; or of another class of decisions like Malleable Iron Works v. Phoenix Insurance Company, 25 Conn. 465, in which it has been held that, where parties come to an agreement concerning the meaning of equivocal words employed in their contracts, the court will construe them according to the understanding arrived at.

To make either class of decisions applicable, we must first be able to perceive that words have been employed which are ambiguous or equivocal in meaning. The argument for the assured is, that in the written policy, as stated in his evidence, the words "in said building" refer, or may refer, to the words "in process of manufacture" only, leaving the words "stock, lumber and goods manufactured" to stand by themselves; in other words, that while the insurance on the goods in process of manufacture is restricted to those in the building, the stock, lumber and goods manufactured are insured without reference to their actual locality. And if there can be any doubt concerning the natural construction of the words being as here claimed, then, it is further argued, one or the other of the principles before mentioned is applicable, and the insurance must be extended to the lumber, if such appears to have been the understanding the parties had of their contract at the time they made it.

But we think any construction of the written portion of the policy, as given by the plaintiff in his evidence, which will confine the reference of the words "in said building" to the goods in process of manufacture, is forced and unnatural, and so opposed to any meaning of the parties to be gathered from the natural and most obvious construction of their language as to strongly impress one that, thus construed, the contract would, in effect, be a new one, differing materially from the one the parties attempted to express by the written instrument. No reason was suggested on the argument, or now occurs to us, why the scope of the words "in said building" should or could be thus restricted, beyond the circumstance that they stand in immediate juxtaposition to the words "in process of manufacture," and were remote from the words "stock, lumber and goods manufactured." But this is obviously a very unimportant and quite accidental circumstance. In any enumeration of property insured in the building, some class of it must be mentioned last, but the qualifying words which follow cannot, without violence to the language, be restricted exclusively to the article last specified, where, as in this case, all are so mentioned and connected as to make the restriction plainly applicable to all. If the purpose was to confine the insurance to the property in the building, it would be difficult to choose more apt and proper words than are here employed to indicate that purpose; while if a more restricted application of the words "in said building" were designed, the parties, it seems to us, have not only failed to express their meaning, but have expressed the opposite.

But whatever might be the construction of the policy, as it is given by the plaintiff in his evidence, there is no room for doubt or for a suggestion of doubt upon it as set forth in the declaration. There the insurance is stated to have been "on lumber and stock of felloes, poles, bows and shafts manufactured and in process of manufacture, contained in the above named building." No construction of this sentence, whether upon grounds of strict grammatical accuracy or of ordinary use, can fail to apply the words "contained in the above named building," at least to the "stock," if not to both the "lumber and stock," which are apparently its subjects; though if restricted in its reference to the stock alone, it would be fatal to the argument which the plaintiff makes on the evidence, where he...