34 F. 501 | U.S. Circuit Court for the District of Eastern New York | 1888
When the testimony in this case was closed, defendant moved for the direction of a verdict. The court was inclined to grant such motion on the ground that it appeared by uncontradicted evidence that the cause of the ñre was the drawing of kerosene by lamplight. Inasmuch, however, as much testimony had been introduced bearing on another defense, viz., the presence or use of gasoline or benzine on the premises, the motion was denied, with leave to renew after verdict as a motion for direction of judgment. All question as to the drawing of kerosene by lamplight was withdrawn from the jury, and upon plaintiffs’ case, and the other defense, their verdict was for the plaintiffs. The defendant now moves for a new trial on the same ground as that urged when the case was closed; not making the motion reserved to it, for the reason that such motion is “not in consonance with federal practice,” because a compulsory nonsuit is not permitted here, and its practical equivalent — the power to direct a verdict — does not exist after verdict rendered. Under the authorities it is no doubt true that the very same process by which a state judge nonsuits a plaintiff on the whole case on grounds of law, is called the “directing a verdict,” when practiced by a federal judge. Oscanyan v. Arms Co., 103 U. S. 261. It would be matter of regret, however, if the federal courts should by sticking in the bark of mere verbal dialectics be unable, despite section 914, Rev, St., to avail themselves of a state practice so simple, sensible, and efficient as that of directing judgment of nonsuit upon reserved points of law after verdict. Shepherd v. Bishop, 6 Bing. 435; Downing v. Mann, 3 E. D. Smith, 36; Insurance Co. v. Minard, 2 N. Y. 98; Shellington v. Howland, 53 N. Y. 371. By the refusal of the court, however, 1o charge his last five requests, and by the denial of his motion to direct a verdict in bis favor, counsel for the defendant is entitled to apply for the relief he now asks.
Neither the plaintiffs’ extended argument, nor a careful examination of the authorities cited in his brief, has altered the opinion expressed on
Is a loss so caused covered by the policy ? It is undoubtedly true that written clauses and riders will prevail over the ordinary printed forms of insurance contracts, and that, as the contract is an instrument prepared by the insurer, all doubts or ambiguities are to be resolved against him. But the two essential rules of interpretation, which are the headlights under which all written instruments should be construed, are just as applicable to contracts of insurance as to any other agreements, — the whole document must be considered, and it must be construed so as to give effect'to the intent of the parties as indicated by the language employed. The contract in suit, which covered a summer hotel, used as a dwelling-house in the winter season, was on one of the ordinary printed forms of policy used by the defendant. It contained, as such policies usually do, many carefully drawn provisions, paragraphed and numbered, restricting the operation of the contract, and saving the company from claims for loss arising under circumstances which exposed them to some unusual hazard which they were not willing to accept. One of these paargraphs is as follows:
“11.* * * Petroleum, rock, earth, coal, kerosene, or carbon oils of any description, whether crude or refined, benzine, benzole, naphtha, * * * or any other inflammable liquid are not to be stored, used, kept, or allowed on*503 the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, excepting the use of refined coal, kerosene, or other carbon oil for lights, if the same is drawn, and the lamps filled, by daylight. Otherwise this policy shall be null and void. ”
This paragraph declares its meaning with no uncertain sound. First, it absolutely prohibits, except upon written permit, the “storing, using, keeping, or allowing” of kerosene and certain other oils on the premises, temporarily or permanently, and for-any purpose whatever, (“for sale or otherwise.”) It next makes an exception in favor of kerosene, but w'ith clearly expressed restrictions: (a) The kerosene so kept is to bo used for lights. It is not to be kept “ for sale,” or kept or used “ otherwise,” except for lights; and manifestly for lights on the insured premises. (b) The kerosene which might thus be kept “ for lights ” is to be drawn by daylight, (c) The lamps in which the kerosene kept “for lights” is burned must be filled by daylight. (d) As to any other manipulation of kerosene wbich is necessary to its use “for lights,” the paragraph above quoted is silent. The next inquiry is whether elsewhere in the contract there is anything so inconsistent with the terms of this paragraph as to make the moaning of the contract doubtful even; for doubts will be resolved against the insurer. The general description of the property, viz.: “ The two-story frame hotel building, with one-story frame kitchen and two-story pavilion adjoining and communicating, situate on Gravesend Bay at Batli, Kings Co., L. I., £it is understood the above property is to be occupied by a family when not in use as an hotel] ” — is certainly not incon-sisten t Avith a provision restricting the keeping and use of kerosene to the single purpose of lighting the premises. In that respect the case at bar differs from the Harper Oases and the others cited, where the ordinary use of such premises, as the policy described or the survey disclosed, was inconsistent with the restrictions of the printed form. Nor does the provision as to special means of lighting, which was written in with the description of the premises, present any such inconsistency. The “privilege to use gasoline gas, gasometer, blower, and generator being under ground about sixty feet from main building, in vault; no beat employed in process,” — does not import that the insured may not also use kerosene for lighting the premises under the conditions of the policy, nor imply that he may keep or use it for any other purpose or in any other way.
It further appears that at the time of issuing the policy there was attached to it a rider containing a customary privilege attached generally to policies, and expressed as foliows: “Privileged to use kerosene oil for lights; lamps to be filled and trimmed by daylight only.” What effect lias tliis upon the provisions of paragraph 11, above quoted? In the first place it imposes an additional restriction upon the insured, for it forbids the “trimming” of lamps except by daylight. Paragiaph 11, by its silence, permitted trimming — an operation not wholly free from danger when conducted by artificial light — at any time. The rider is thus susceptible of intelligent interpretation, without finding its sole meaning in the endeavor to dispense altogether with the kerosene clause
Finally, plaintiffs sought to sustain their case on the terms of another rider,_ written on the margin of the policy, at the close of the season of 1878, when the assured decided to give up lighting any part of the premises with gasoline. It reads as follows: “Privileged to keep not exceeding five barrels of kerosene oil on said premises.” There is nothing in this clause, however, at all inconsistent with the restrictions as to drawing which the policy contains. Nor does it at all import a keeping for any purpose other than that already provided for, viz., the lighting of the premises. It merely provides how much kerosene may be kept under the general license to keep, implied in the kerosene clause and the rider. It is not concerned either with the uses or manipulation of the oil so kept. The clause and both riders stand perfectly together.