177 Iowa 4 | Iowa | 1916
The petition declared upon a policy in defendant company which covered the property hereinafter described. The answer admitted the issuance of the policy, the fire and the destruction of the property of the kind described, to the amount claimed, to wit, $708.53. No question as to the validity of the policy, the occurrence of the fire, nor proofs of loss, nor amount of loss, is involved. The defense set up in the answer is that defendant was a concurrent insurer upon a portion of the property described and destroyed by fire, and that, to the extent that it was a concurrent insurer, it was only liable for its pro rata share of the loss. As appellant states it, the dispute arises upon whether a portion of the property covered by the policy in suit was also covered by the other insurance policies issued by other com- „ panies to the assured.
Plaintiff then offered as the evidence of the witness that
‘ ‘ That, at the time each of the aforesaid policies of insurance (except the policy sued upon in this case), was written and took effect, plaintiff was not engaged in the manufacture and sale of ice cream and had no ice cream department and had none of the personal property described in and insured by policy of insurance sued upon in this case, and had or owned no property of like kind or description, and no personal property of like kind or description was kept or situated in or about the premises described in said several policies of insurance (except the policy sued upon) at the time each of them was issued and took effect. ’ ’
■ All of this was objected to by defendant as immaterial, and as incompetent because it tended to vary and contradict the terms of the written contract sued upon, and in respect to the kinds and character and classes of property insured and covered by the policy, and also in respect to the description of the kind and character of the property insured by other policies which existed at the time of the insurance of the policy in question, and because there is nothing in the language of the policy in question which describes the kind and character of property covered thereby, and in the policies referred to in the pleadings and stipulation, which justifies the introduction of parol evidence. The objection was overruled, and some of the assignments of error relate to such ruling.
Appellant cites Kelsey v. Continental Casualty Co., 131 Iowa 207, Phillipy v. Homesteaders, 140 Iowa 562, Marsh v. Concord Mut. Fire Ins. Co., 71 N. H. 253 (51 Atl. 898), Union Mut. Life Ins. Co. v. Mowry, 96 U. S. 544, upon the proposition that no party to an insurance risk can be allowed to testify either what his understanding was or what he was told by the agent in respect to the construction and interpretation of his contract of insurance. And, further, that, in
Appellee does not dispute the propositions of appellant just stated, but contends that the cases do' not apply to the facts in the instant case, because in each of the cases cited the writing was full, clear and explicit, and presented no occasion to inquire into the sense and meaning of the terms used.
There is no question about the rule, but there are many exceptions. We think the evidence is competent to show the surrounding circumstances; that the court may read the policy in the same light the parties did, to ascertain their object and see in what sense they made use of the words, and as tending to explain the ambiguity created by the use of the language in the different descriptions in the policies and the riders thereto, appellant’s contention being that the different descrip
Appellee cites many cases upon the first proposition, among them the following Iowa eases: Miller v. Mutual Benefit Life Ins. Co., 31 Iowa 216, 223; Boetcher v. Hawkeye Ins. Co., 47 Iowa 253; Williams v. Niagara Fire Ins. Co., 50 Iowa 561, 568; Jordan v. State Ins. Co., 64 Iowa 216; Eggleston v. Council Bluffs Ins. Co., 65 Iowa 308, 316; Thompson v. Locke, 65 Iowa 429; Stone v. Hawkeye Ins. Co., 68 Iowa 737, 742; Miller v. Hartford Fire Ins. Co., 70 Iowa 704; Erb v. Fidelity Ins. Co., 99 Iowa 727; Biermann v. Guaranty Mut. Ins. Co., 142 Iowa 341, 346; Cedar Rapids Nat. Bank v. Carlson, 156 Iowa 343; also Browne on Parol Evidence, See. 179; 2 Elliott on Contracts, Secs. 1655, 1508, 1657, 1659, 1517, 1519, 1514, 1515; 9 Eneye. .of Evidence, page 370. Some of these cases are to the proposition that, when a soliciting insurance agent issues a policy, having personal knowledge of the conditions of the risk, the company is bound by his knowledge, and that the -company will be held to 'have entered into the contract, having in mind the conditions as they were actually known to the agent, and that parol evidence is admissible to show the knowledge possessed by the agent of the conditions surrounding the risk at and before the time, of the issuance of the policy.
On the second proposition, as to the alleged ambiguity, they cite Davis v. Anchor Mut. Fire Ins. Co., 96 Iowa 70; Eggleston v. Council Bluffs Ins. Co., supra.
On the third proposition, as to the identity of the subject-
On the last proposition, they cite Wells v. Hocking Valley Coal Co., 137 Iowa 526; Sutton v. Griebel, 118 Iowa 78; McCaskey Register Co. v. Hall, 140 Iowa 87; Ware v. Allen, 128 U. S. 590.
The Egglestmi ease, supra, is also cited to the proposition that no prayer for reformation was necessary to make the evidence competent. The argument of the appellee is that the evidence is admissible to explain the meaning of the terms “merchandise” and “furniture and fixtures,” as used by the parties; that furniture and fixtures for a jail would not call for that class of equipment designed for a church; and that merchandise or furniture and fixtures for a wholesale fruit house would not call for such equipment as designed for an ice cream parlor; that the words “merchandise . . . sacks, crates and containers,” appearing in the 11 policies, do not mean the same as “ice cream manufactured and in process of manufacture, and all other apparatus and merchandise not herein mentioned, used in the manufacture of ice cream, ’ ’ appearing in the policy' in question; that the parties did not mean the same thing, or they would have used the same language in each instance; and that, because different language is used, there is ambiguity. Appellee does not contend that Mr. Emery could testify as to what the agent told him as to the construction or interpretation of the policy, nor as to what his understanding or intention was.
It appears that plaintiff had been engaged in the fruit and vegetable business and contemplated adding thereto an ice cream department. We think the parol evidence is competent to show that, as a matter of fact, he had no ice cream department until the American policy was issued. In the instant case, the descriptions of the property in the different policies are not the same, but it is appellant’s contention that they mean the same, and the stipulation provides that the
2. Before proceeding further with the questions as to the construction of the different policies, it would be well, perhaps, to set out the provisions _ of the different policies. Eleven of them, issued mostly in 1911, — one as late as April, 1912, but all before the policy in defendant company was issued, — describe the property as follows:
“On their stock of fruits and vegetables, to include oranges, lemons, bananas, apples, potatoes, oysters, celery, dates, and all other merchandise kept for sale by them, their own, or held by them in trust or on commission or consignment, or sold but not removed, also to include sacks, crates and containers of every description, ail while contained in the
We have italicized th.e clauses upon which the principal controversy hinges. ' All these policies contain the clause, “Other insurance permitted.”
There was another policy in the Providence of Washington, issued in December, 1911, wherein the property is described as follows:
“$1,000 on their furniture and fixtures, to include counters, shelving, partitions, desks, chairs, tables, typewriters, iron safes, stationery, linoleum, gas and electric light fixtures and connections-, electric fan and connections, plumbing,' gas, coal oil and coal stoves, scales, trucks, tools and all other furntiure and fixtures owned by them and used in their business. ”
The Providence policy also contained .the following clause:
“It is hereby agreed that the insured may obtain other additional insurance in companies authorized to do business in the state of Iowa.”
The description of the property in defendant’s policy, which was issued June 7, 1912, is like this:
“$2,500 — On ice cream machines, ice cream carriers and cans, scales, mixing tanks, line shaft, shafting pulleys, belting, hangers, electric motors, testing apparatus, milk cans, extracts, raw cream, ice cream manufactured and unmanufactured, and in process of manufacture, and all other apparatus and merchandise herein not mentioned, used in the manufacture of ice cream, all while contained in the three story and basement brick building situated and known as No. 226 and 228 Commercial Street, Ottumwa, Iowa.”
All of the policies, including defendant’s, were written on what is known as the Iowa standard form of fire insurance policy, and also contained the following provision:
. “This company shall not be liable under this policy for a greater proportion of- any loss on the described property, or for loss by and expense of removal from premises endangered
The items for which plaintiff sought to recover in the petition are contained in a part of the agreed statement of facts, as follows:
‘ ‘ That, on the 7th day of August, 1912, while said policy of insurance was in full force and effect, a fire occurred in the building and premises described in said policy of insurance, and the personal property described in and covered by said policy of insurance was damaged and lost by reason of said fire to the extent of $708.53 in value and that said damage and loss was to the following items of property in the following amounts, to wit:
“Ice cream supplies $281.70
Ice cream freezers and testers 69.00
Ice cream containers 175.92
Stock of ice cream 181.91
Total, $708.53”
Defendant’s claim is that, at the time of the fire, the other policies, or 11 of them, upon the property involved in the fire, covered, as they claim, a portion of the property covered by defendant’s policy, and that it is only liable for the first item in the account, $281.70, and that it is alone liable for that amount; and it admits that, as -to the second item of $69, it is liable for $47.56 thereof, and claims that the Providence Company should have been held for the remainder, $21.44. Of the other two items in the -account, to wit, ice cream containers, $175.92, and stock of ice cream, $181.91, it admits liability in the sum of $29.68, and claims that the 11 companies before referred to are liable for the balance of these two items, making a total sum for which defendant admits it is liable, of $358.94.
It was stipulated that:
As to the Providence of Washington policy and as respects the ice cream freezers and testers, it was stipulated:
"In ease the policy of the Providence of Washington shall be construed to cover and insure the ice cream, freezers and testers, then this defendant is liable to plaintiff for loss and damage to ice cream freezers and testers in the sum and amount of $47.56, and if the policy of the Providence of Washington is held not to cover said items, then defendant is liable to plaintiff for such loss and damage in the sum and amount of $69.”
It is further contended by appellant that the policies are concurrent, and that, since its policy and all the others contained the provision that "this company shall not be liable under this policy for a greater proportion of any loss on the described property . . . than the amount hereby insured shall bear to the whole amount of the valid and collectible insurance covering such property,” and since the property described in the 11 policies and its own policy is exactly the same property, as defendant claims, it is only liable for its pro rata share. The contention is that the language of the first italicized clause in the 11 policies before set out includes "stock of ice cream, $181.91,” and that the language last italicized in said 11 policies, viz., "containers of every description,” includes "ice cream containers, $175.92,” set out in the plaintiff’s claim; that the clause, "all other merchandise kept for sale by them,” includes the stock of ice cream, because, as they say, ice cream is merchandise,. within the
From this comparison of the clauses found in the policies of the 11 companies, they claim that the items “stock of ice cream” and “ice cream containers” are covered by such policies, and they concede that these items are also covered by the policy in question, claiming that as to these items, the 12 policies are concurrent. Appellant then compares the description of the property in the Providence of Washington policy and the policy in suit as covering ice cream freezers and testers, $69. The language in the Providence policy which defendant claims covers ice cream freezers and testers is this:
“$1,000 on their furniture and fixtures, to include counters, etc., and all other furniture and fixtures owned by them and used in their business.”
The claim is that the terms “their furniture and fixtures” and “all other furniture and fixtures” cover the ice cream freezers and testers, and particularly so, the word “fixtures.” As to this matter, the agreed statement of facts recites that:
“The meaning of the term fixtures in its ordinary and general use in fire insurance policies, and for the purpose of this ease, is hereby defined to include and embrace ice cream freezers and ice cream testers.”
Appellant’s claim is that all the other 12 policies are concurrent with the policy in suit, upon the authority of the following cases: Washburn-Halligan Coffee Co. v. Merchants’ B. M. Fire Ins. Co., 110 Iowa 423, 430; Corkery v.
In support of the proposition that the term “merchandise,” or the.phrase “all other merchandise,” found in the description of the property insured in each of the policies referred to, covers the stock of ice cream, appellant cites Traders’ Ins. Co. v. Dobbins (Tenn.), 86 S. W. 383; City of Gulfport v. Stratakos (Miss.), 43 So. 812; Blackwood v. Cutting Packing Co., 76 Cal. 212.
Counsel also contend that stocks of merchandise in the store or building, at the time of the fire, answering to the description in the policy, are covered, though other and.different from the stock on hand at the time of the issuance of the policy, and that subsequent purchases of the class of property insured are covered, citing 7 Am. & Eng. Encyc. of Law (1st Ed.), page 1008 (6); Mills v. Farmers’ Ins. Co., 37 Iowa 400, 402; Beyer v. St. Paul Fire & Marine Ins. Co., 112 Wis. 138 (88 N. W. 57, 61); Hoffman v. Ætna Ins. Co., 32 N. Y. 405, 410—12; Manchester Ins. Co. v. Feibelman, 118 Ala. 308 (23 So. 759, 764); Hooper v. Hudson River Fire Ins. Co., 17 N. Y. 424, 426; Peoria Ins. Co. v. Anapow, 51 Ill. 283; American Cent. Ins. Co. v. Rothchild, 82 Ill. 166, 168; Planters’ Mut. Ins. Co. v. Engle, 52 Md. 468; Bradbury v. Fire Ins. Assn., 80 Me. 396; Tompkins v. Hartford Fire Ins.
This is the rule under the facts of those cases, and we are not departing therefrom. Counsel refer to the first of the cases just cited as a shifting risk, which is defined to be a policy on what is called a shifting risk — that is, where the articles composing the subject of insurance are, from the usages of the business, constantly changing, as a stock of merchandise, or that of a manufacturer — and covers that which is on hand at the time of the loss, though none of it may have been on hand at the time of the underwriting of the policy, and though nothing be said regarding it therein.
Counsel upon either side cite the same cases and concede the rule to be to construe the terms of a policy most strongly against the insurer, and to resolve every doubt or ambiguity in favor of the assured and against the insurer. Many authorities are cited by counsel on either side on the different propositions, and we shall not take the space to review the cases.
Appellee contends that the doctrine of shifting risk does not apply here, because the rule applies only to property of like general character, kind or description, and that the ice cream department in the instant case was not kindred to any line of business that plaintiff was previously carrying. It will be noticed that the property in appellant’s policy is more particularly described than in the others, and defendant contends that the other companies should be held under the more general terms describing the property in the other policies.
We are of opinion that the words "all other merchandise” do not, under the doctrine of ejuscLem generis, cover loss of ice cream, etc., for the reason that the words ‘ ‘ all other merchandise” had reference to the same kind of merchandise —fruits, vegetables, etc. So, too, with the Providence policy, that "furniture and fixtures” in its*policy meant property such as desks, counters, shelving, partitions, chairs, tables, typewriters, gas and electric light fixtures, etc. The term "furniture and fixtures” would cover property of like kind, which would not include ice cream' freezers and testers, forming a distinctive department installed subsequent to the issuance of such policy, although it may be conceded, and is conceded in the agreed statement of facts, that, in a sense, ice cream freezers and ice cream testers might be considered as fixtures; but, as said, the policies are to be construed as applicable to the facts that existed at the times the different policies were issued, and as contemplated by the parties. What the term "fixtures” may mean generally and standing alone is not controlling. The question is: In what sense were the terms "ice cream freezers” and "ice cream testers” used by the parties in this case under the policy in question? The rule of ejuscLem generis must yield to the cardinal rule that the contract is to be construed as a whole. The meaning of a clause or sentence may be limited by the sentence preceding it. *
Again, we do not see how the rule of ejuscLem generis is of any aid to appellant, as, under its policy, the last general phrase in the policy or rider is: "All other apparatus and
We think it is a reasonable construction to hold that the policies upon a general stock of fruits and vegetables, furniture and fixtures, do not cover a subsequently acquired ice cream department, being property concededly not of like kind or description.
Without discussing appellee’s cases more in detail, we simply .cite them, stating the propositions. The first is that the general terms “merchandise, furniture and fixtures,” etc., are controlled and limited by the specific enumeration and classification which are confined to the ice cream department alone, and which the other policies do not cover. On this, they cite 19 Cyc. 657; McCluer v. Girard Fire Ins. Co., 43 Iowa 349; Longueville v. Western Assurance Co., 51 Iowa 553; Hewitt v. Watertown Ins. Co., 55 Iowa 323; Furlong & Meloy v. North British & Merc. Ins. Co., 136 Iowa 468; Sawyer v. Dodge County Mut. Ins. Co., 37 Wis. 503; Lames v. Armstrong, 162 Iowa 327.
Their next point is that appellant may not single out certain words or phrases and say they control; that the rider and policy must be interpreted as a whole; and that as a whole it related to the ice cream department only, and not to the general st\)ck of merchandise, fruits, vegetables, etc., nor to furniture and fixtures in general, citing Elliott on Contracts, Sec. 1514; Sinclair v. National Surety Co., 132 Iowa 549—557.
And again, that the rider to the defendant’s policy does not embrace in detail property of like general kind and
We are of opinion that the trial court correctly interpreted the contracts, and the judgment is therefore — Affirmed.
