114 Pa. 431 | Pa. | 1886
delivered the opinion of the court
This was an action upon a written contract of insurance to recover for the loss of a brood mare killed by lightning.
The defendant company had insured a number of the plaintiff’s horses against loss by fire. They were described as “all contained in his new two-story farm barn situated on his farm in Hanffield township, Mercer county, Pa.”
This policy was in the usual form of fire policies, covering insurance upon either personal or real estate. Attached to it was what has been designated as the “lightning clause,” as follows:
“Attached to policy No. 447.840 of the Fire association of Philadelphia. Agency at Greenville, Pa.
“It is hereby specially agreed that this contract insures against any loss or damage caused by Lightning to the property insured, not exceeding the sum insured nor the interest of the assured in the property, and subject, in all other respects, to the terms and conditions of the policy hereby referred to,” etc.
The mare referred to was killed By lightning whilst pasturing on a field of plaintiff’s farm. The court below instructed the jury that “ we are brought to the conclusion in view of this writing made by one party and accepted by the other, which is the law between them in this case, that the plaintiff cannot recover in view of the fact that his property was killed when not in the barn.” This ruling forms the subject of the first assignment of error.
It is to be noted that the lightning clause, as it is called, is subject “ to the terms and conditions of the policy referred to.” What does this expression mean? We think the rational construction of it is that it refers only to such terms and conditions of the policy as are applicable to this particular insurance, that is, insurance against lightning. It would be irrational to apply the terms and conditions of the policy which refer only to insurance upon buildings. Such insurance was not the subject matter of the contract, and the parties cannot
The policy, as before stated, describes the property as'“ contained in his two-story farm barn, etc.” Was this intended as a promissory contract or warranty that the horses were to be kept all the time in the barn, and that the policy should cease to cover them the moment they left its shelter? We must take a reasonable, common sense view of the contract, and by so doing we shall best arrive at what the parties actually intended. We have here a farmer insuring his horses against lightning. He was contracting for indemnity in case his horses should be killed. He knew, as every man of average intelligence knows, that the danger from lightning exists almost wholly in the summer season. That is a period of the year when stock of all kinds upon farms is kept in the fields much of the time by day and by night. A policy of insurance which only covered stock when in the barn would not furnish indemnitj', and no man of common sense would insure iu such a company.
It is true in an insurance upon such personal property as household goods or a stock of merchandise, the words “ con-
This disposes of the first assignment of error. We also1 sustain the second. It was error to instruct the jury to find for the defendant.
Judgment reversed and a venire facias de novo awarded.