No. 130 | Pa. | Oct 29, 1888
Lead Opinion
Opinion,
This action was brought upon a policy of insurance of the St. Paul Fire and Marine Insurance Company, to recover for the loss of a suckling colt, killed by lightning. The plaintiff, A. J. Haws, is the owner of a stock farm in Mercer county, upon which was erected a frame bank barn. The policy of insurance is dated March 19, 1883, and the company by its terms agreed to insure the plaintiff against loss or damage by fire, to an amount not exceeding $2,500 on the barn and its contents. The property insured is classified and recited in the policy, the last item being “ $1,000 on horses, not to exceed $200 on any one horse; ” and as part of the general description of the personal property, it is added in writing, “ all contained in above-described barn.” There is a clause in the printed parts of the policy to the effect that the company shall not be liable for loss by lightning, or explosions of any kind, unless fire ensues, and
There was $2,500 of concurrent insurance, and in addition $1,000 on horses alone. On the night of June 8, 1885, two of the plaintiff’s brood mares and this suckling colt were killed by lightning whilst in the field at pasture. Proofs were made claiming one hundred dollars for the loss of the colt; one hundred dollars having been paid by the company carrying the concurrent insurance.
The policy contains a general printed clause in the following words : “ This policy does not cover or insure personal property of any kind while removed from the particular building herein described, or kept or used in any other place or location, unless otherwise specified in the policy.” The company contends that as the colt was not in the barn at the time of the casualty, it was not embraced within the terms and conditions of the policy, and that, therefore, there can be no recovery. The plaintiff maintains, however, that the clause last quoted is inconsistent with the manifest purpose of the policy in respect of the insurance of horses; that to give it full effect is to deny the owner the ordinary use of his property, as well as the privilege of pasturage, which in the summer months, at least, is well known to constitute the chief food supply; that the clause in question is in the printed form, and is repugnant to the general purpose of the parties, as manifested in the written portions of the policy. We cannot adopt the plaintiff’s view of this case. The manifest and obvious purpose of the parties, we think, was to place the insurance on the barn and its contents as specified in the policy. In Haws v. Fire Association, 114 Pa. 431" court="Pa." date_filed="1886-11-15" href="https://app.midpage.ai/document/haws-v-fire-assn-6238500?utm_source=webapp" opinion_id="6238500">114 Pa. 431, which is much relied upon by the plaintiff, there was no such clause in the policy as quoted above, and the insurance was upon horses alone. The horses, it is true, were described as “ contained in
For anything that appears, the insurei’, on the one hand, may have relied upon the location or structure, or upon the appliances attached to the building, as a protection from lightning, and estimated his risk accordingly; or, the owner, on the other hand, knowing the fact that barns are, for some reason, not well understood, more liable to injury from lightning than other buildings, and that the risks from this cause attaches as well to the contents as to the building itself, contemplated an indemnity only as against this extraordinary risk. However this may be, in view of the explicit and plain language of the policy, we are constrained to hold that the restriction applies to the horses, as well as to the other property embraced in the policy.
The judgment is affirmed.
Dissenting Opinion
Dissenting Opinion,
I regret that a broader view has not been taken of this case.
In the case in hand the insurance was of personal property contained in a barn, with a lightning clause added. The policy was in the usual form, with a clause that the policy should not cover any of the property while removed from the barn. This was all well enough for the inanimate property in the barn. But the lightning clause was intended for the horses. No one insures hay, grain, and farming implements from lightning. I concede the clause against removal technically covers the horses. But I still think that as to the horses insured by lightning, it was never intended to apply; and was not and could not have been in the contemplation of the parties at the time of the making of the contract, assuming them to have been reasonable beings capable of making a contract. I would reverse this case.
On January 21,1889, the court, on petition of the appellant, ordered a re-argument. In pursuance of this order the case was argued on October 14, 1889, before Paxson, O. J., Stbrrett, Green, Clark, Williams, McCollum and Mitchell, JJ.
2. If these printed conditions have any effect on the contract of indemnity when repugnant to it, then our recovery should be defeated because the colt was killed by lightning, with far more reason than because it wa,s removed from the building in which it was insured. The printed clause of forfeiture on which the court below ruled the case, is repugnant to the written contract for indemnity and must fall: Harper v. Insurance Co., 22 N. Y. 443. It is equally as repugnant as the printed conditions which this court refused to enforce in Grandin v. Insurance Co., 107 Pa. 26" court="Pa." date_filed="1884-05-26" href="https://app.midpage.ai/document/grandin-v-rochester-german-insurance-6237824?utm_source=webapp" opinion_id="6237824">107 Pa. 26; Haws v. Fire Association, 114 Pa. 431" court="Pa." date_filed="1886-11-15" href="https://app.midpage.ai/document/haws-v-fire-assn-6238500?utm_source=webapp" opinion_id="6238500">114 Pa. 431, and American etc. Ins. Co. v. Haws, 20 W. N. 370. To give effect to it is practically to destroy the indemnity against lightning for which the plaintiff paid, for all the world knows that brood mares and suckling colts are never kept in barns in summer, but run in pasture, and the summer is the only time when there is danger from lightning.
3. It was for the animate property, the horses, that the lightning clause in this policy was intended, for the evident reason that the damage which lightning, not followed by fire, would do to the other personal property insured would be but trifling, while it kills a horse whether followed by fire or not. If this provision was not intended for the horses and for them alone, it was surplusage; and if it was intended for them, it must override a printed condition evidently intended for another kind of property. All the other conditions of the policy show that the printed clause, respecting removal from the building.
4. We submit that this policy shows a special contract by which the operation of the condition was barred as to the horses; that the written clause insuring against loss by lightning, whether fire ensues or not, was intended particularly for the horses, and was designed to cover them in the only place where experience teaches they were in danger from lightning not followed by fire, that is outside the barn. Whoever heard of a horse being killed by lightning in a bam without the barn being burnt ? The condition in this case is not so strong as that in American etc. Ins. Co. v. Haws, 20 W. N. 370, for the words, “ unless otherwise specified in the policy,” were missing from the policy in that case. Under these words the agreement for indemnity against lightning furnishes all that is required, if anything is, to render the forfeiture clause of no effect.
5. If this policy had been solely upon the horses, with all the printed conditions as they are, this court, following the line so clearly laid down in the cases we have cited, would have held the condition inoperative. Why should the fact that there are two kinds of property insured in this policy make any difference ? Is it impossible to insure two kinds of property in the same policy and give to each its proper protection ? Shall the rules and conditions governing inanimate property always override those governing animate property, when both are covered by one policy, no matter how small the amount of the former and how large that of the latter ? If a clause destroying part of the protection bargained for, is of no effect when the insurance is on one kind of property, but, when an article to which the clause relates is introduced, the clause then becomes binding, not only on that article, but upon everything else, the law is not certain, as it should be, but we have a sliding rule for the construction of the same condition.
2. The company had a right to contract for a limitation of the risk to the location where the property was, at the time the insurance was effected: 2 Parsons on Cont., 428. The policy makes no distinction between animate and inanimate property. It unequivocally excepts out of the risk property of “any kind” while removed from the specified building. Suppose the plaintiff hauls his grain to market, in his own wagon with his own horses; and that while at the market town all are destroyed by fire. What reason is there for the distinction the plaintiff attempts to draw between the horses, on the one hand, and the wagon and grain, on the other? Was not the wagon made for use, and the grain raised to be marketed? Was it not in contemplation that they could not always remain in the barn ? In fact, the argument of the plaintiff, based upon the “ peculiar nature ” of the horses, is equally applicable to the wagon and grain, and is an attempt to get rid of the plain contract in the policy by a metaphysical jargon.
3. Certainly a line of distinction is not to be drawn between animate and inanimate property, in the construction of policies, for in Grandin v. Insurance Co., 107 Pa. 26, cited by the plaintiff, the property was petroleum in a pipe-line. Can a different
Opinion, Mb. Justice Clark:
In view of the diverse opinions entertained when this cause was here before, we ordered a re-argument. The re-argument has not resulted, however, in effecting any change in the judgment then entered. The Court, although somewhat differently constituted, by a majority is not inclined to recede from, but rather to adhere to the views then expressed in the opinion filed. We do not think it necessary to add anything to what was then said.
The judgment is therefore re-affirmed.