Hayward v. Liverpool & London Fire & Life Insurance

3 Keyes 456 | NY | 1867

Parker, J.

—The provision in a policy that a company will not be liable to make good any loss or damage by fire which shall happen or arise by any explosion, repeated in the conditions appended, and referred to in the policy, must, I think, be taken to include an explosion of the. steam engine insured, as well as any external explosion.

There is no inconsistency in such construction with the fact that the engine itself was insured against fire. The company might well say : We will insure your factory, engine included, against fire produced from every cause, except an explosion of the engine. So far from there being any inconsistency in this, it is impossible to say that it was not a wise and reasonable provision, intended to induce carefulness in the management of the engine, and to refuse the risk of carelessness in its use. It is said the defendant has been paid an extra price for the risk caused by the engine. Still, the exception in the risk of its explosion is not inconsistent with that fact. Undoubtedly the use of a steam engine, and without respect to its liability to explode, increases the hazard of loss by fire to a building in various ways, which sufficiently accounts for the extra charge for insurance, where one is used. In the case of Harper v. Albany Mutual Ins. Co. (17 N. Y., 194), relied upon by the defendant, the doctrine affirmed was, that in construing a policy of insurance, the intent of the parties is to be gathere'd from both the written and printed portions, and effect given to both, so far ás can be ; but in case of repugnancy between them, the written part shall prevail over the printed part; and the principle was illustrated by the learned judge who gave the opinion of the court, in the following manner; “ When the insurance is directly upon the stock in trade, as, for example, in the business of manufacturing and sale of camphene, to hold that a general printed prohibition (contained in every policy of insurance) against keeping or using it, unless permission be specially given and indorsed upon the policy, would have the effect to nullify its - direct and positive stipulations, would be prepossterous.”

The case at bar is very different from that of Harper v. Albany Mutual Insurance Co. ; and as we have seen that there is no repugnancy between the insurance of the engine against loss by fire and the exception of loss and damage by fire occasioned by the explosion of the engine, it is not within the principle of that case.

The inquiry always is, is there between the exception and the scope of the undertaking in the policy any repugnancy % If not, in construing the policy the intent of the parties is to be gathered from both the written and printed portions, and effect given to both, according to the ordinary rules of construing written contents.

I am of the opinion that the judgment of the superior-court is right, and should be affirmed.

All the judges concurred.

Judgment affirmed.