25 Mont. 272 | Mont. | 1901
delivered the opinion of the Court.
This was an action to recover $2,650 on two policies of insurance issued by the defendant to the plaintiff upon “her stock of drugs, oils, paints, glass, fancy articles, patent medicines, wall paper, liquors, and other articles usually kept for sale in retail drug stores,” and “her store furniture and fixtures, including counters, shelving and showcases,” and “her one-story frame, shingle-roof building occupied as a drug store, situate on the premises of the assured in the town of Sand Coulee, Cascade county, Montana.” The policies insured the plaintiff to an amount not exceeding $1,650 upon her stock of merchandise and fixtures, and toi an amount not exceeding $1,000 on the building. The complaint states, that the plaintiff was the owner of the property insured; that the defendant issued the policies, which are pleaded by copy; that on the 4th day of February, 1897, the property was totally destroyed by fire, and at the date of the loss was of the actual cash value of ■$4,6O0; that plaintiff’s loss under the policies was $2,650 ; that the plaintiff, immediately after the loss, and more than sixty •days prior to the commencement of the action, notified the ■defendant thereof, and furnished it with written proof of the loss; that the plaintiff has duly performed all the conditions on her part to' be performed; that the sum of $2,650 is diie and unpaid from the defendant toi the plaintiff; and that the ■defendant refuses to pay that or any other sum. In its answer
By consent the cause was sent to C. II. Benton, Esq., as referee. He found the issues for the plaintiff, and reported a judgment for $2,650 against the defendant. In accordance with the report, judgment was entered, and from it, and am order refusing a new trial, the defendant appeals.
1. The first point urged by the defendant is that the com
Counsel says that under these provisions the complaint must state either that there was an appraisement or award, or that a submission to appraisement was waived or prevented by the defendant. Assuming that the complaint must, in substance,
2. Each policy declares that the defendant insures the plaintiff against loss or damage by fire, “except as hereinafter pro
The provisions quoted appear and are part of the printed forms upon which the policies were made out. The description of the subject-matter of the risk, specified as plaintiff’s “stock of drugs, oils, paints, glass, fancy articles, patent medicines, wall paper, liquors and other articles usually kept for sale in retail drug stores,” is typewritten, and was attached to the policies in the places left for the insertion of the description. The defendant averred that the plaintiff, contrary to- the terms of the policies, .kept in stock gasoline, benzine and ether. At the trial it was shown that when the fire occurred there were in stock four pounds of ether, five gallons of benzine, and not more than ten, nor less than five, gallons of gasoline. The defendant insists that there was no evidence tending to prove that ether, benzine and gasoline are articles usually kept for sale in retail drug stores, but we are satisfied that the evidence did tend to prove that the three articles named are usually kept for sale
The provisions quoted did not constitute an absolute prohibition against the keeping of benzine, ether or gasoline. In its printed part each policy declares, in effect, that, unless otherwise provided by agreement indorsed thereon or added thereto, it shall be void if there be kept benzine, ether or gasoline, notwithstanding the fact that any. usage or custom of trade or manufacture may permit them or any of them to be kept; and each policy is declared to be made and accepted subject to this stipulation and condition,'together with such other provisions, agreements or conditions as may be indorsed thereon or added thereto. In accordance with the terms of the printed part of each policy there was added an agreement in writing-by which the defendant insured, and the plaintiff accepted insurance upon, articles usually kept for sale in retail drugstores. This agreement is in no wise repugnant to the inhibition against the keeping of benzine, gasoline or ether, for the keeping of these articles is prohibited unless the parties otherwise agree. They did otherwise agree, and the agreements, must be held to be agreements attached to the policies “which removed the exemption from liability which would otherwise have existed.” (Yoch v. Home Mutual Insurance Co., 111 Cal. 503, 44 Pac. 189, 34 L. R. A. 857, and authorities there cited; and cases cited in note to Lancaster Fire Insurance Co. v. Lenheim, 33 Am. Rep. 781.) The true meaning of the prohibitory provision seems to be that the keeping of any of the articles named, though kept in accordance
3. Much of the brief in behalf of the defendant is devoted to an argument by which it is sought to be shown that the plaintiff failed to prove by competent evidence hovT much, if any, damage she sustained by the loss of the property, and that the evidence is insufficient to justify the finding that three-fourths of the cash value of the property was the sum of $2,650. Careful and repeated examinations of the evidence satisfies us that the witnesses ivere qualified to testify touching the value of the property destroyed, and that the evidence sustains the findings, both express and implied.
4. It is contended that the referee erred in not permitting pauper cross-examination of the witness McCann in respect of his interest in the insured property and the result of the
5. The only remaining specification of error which deserves mention is that the findings and judgment are for the full amount of the face of the policies, without deduction on account of a prior fire which consumed part of the insured property, and for which proof of loss had been, made by the plaintiff. Although the defendant, in its answer, averred that a' part of the property insured had been destroyed by a fir© in August, 1896, and that the loss thereby was adjusted, and $94.06 paid to her by the defendant, there was nothing shown upon the trial with respect to the amount of the loss, or what sum, if any, was paid. It appeared, incidentally, that there was a fire in August, 1896, which destroyed some of the property, and that the plaintiff made proof of loss; further than this the evidence is silent. It is obvious, therefore, that the position of the defendant is untenable.
The judgment and the order denying the motion for a new trial are affirmed.
Affirmed.