92 F. 500 | 6th Cir. | 1899
(after stating the facts). We think the judgment must lie affirmed. It is well settled in the law of lire insurance that the insurer is estopped to plead as a defense the breach of conditions against other insurance or incumbrances without the consent of the company in writing on the face of the policy, if it appears that, when the agent of the company, with authority to deliver or withhold policies, delivered the policy in question, lie then knew of the existence of the other insurance or the incumbrance. In Insurance Co. v. Norwood, 32 U. S. App. 490, 16 C. C. A. 136, and 69 Fed. 7, which was decided by the circuit court of appeals for tlie Eighth circuit, it was held that, where the agent was advised by tlie insured at the time of the issuing of the policy that, he intended lo take ouc other insurance, the estoppel would apply. Judges Caldwell and Thayer upheld this view. Judge Banborn dissented on the ground that the rule did not apply tojhe knowledge of the agent of the intention on the part of the insured to take out other insurance in future, but only to knowledge of existing insurance at the time the policy was issued. But tlie proposition formulated above, and which goes as far as is needed to sustain the charge of the court below, was expressly approved, not only by the majority of the .court, but also by the dissenting judge. Ollier cases sustaining this doctrine are Putnam v. Insurance Co., 4 Fed. 753 (a decision by Mr. Justice Blatchford, then circuit judge); Whited v. Insurance Co., 76 N. Y. 415; Insurance Co. v. Hick, 125 Ill. 361, 17 N. E. 792; In
The second assignment is based upon the construction which the court gave of the word “allowed” in the clause providing that the policy should be void “if there he kept, used, or allowed” on the premises gasoline. The court construed the word “allowed” to mean “allowed to he kept or used.” The evidence tended to show that gasoline was carried through the store from a'shed in the back yard, not connected with the main building, where the stock of goods was insured. It was conceded that such carrying of gasoline through the store without leaving it there permanently did not come within the adjudicated meaning of the terms “kept and used”; hut it was contended that the word “allowed” embraced more than “kept or used,” and was sufficiently broad to include the carrying of gasoline through the store for immediate delivery to customers, even though gasoline was not allowed to be stored on the premises, or to remain there longer than the time required to carry it from the back door to the customer, and to deliver it to him. The court construed the word “allowed” as if inserted for the purpose of making it clear that the condition would be broken, whether the keeping and using was done by the insured himself, or was allowed or permitted by him to be done by some one else. The argument made on this construction is that under it the word “allowed” is merely redundant, and adds nothing to the meaning of the other two words, because it has often been adjudicated that they are broad enough to cover, not only the act of the insured, but also the act of any person whom the insured may permit or allow to keep or use gasoline upon the premises, and in some cases even the act of a tenant in keeping gasoline against the express command of the insured. The mere fact that the words “kept or used” might, by construction, be made wide enough to include “allowed,” does not require of us,"when the word “allowed” is expressly made a part of the policy, to give it any different meaning from what it would have when it was implied from the use of other words. The habit of using apparently redundant expressions in statutes and contracts and deeds, for the purpose of excluding any possibility of a misconstruction, is very frequent. It justifies us in giving the word “allowed” its ordinary meaning, instead of attributing to it a strained and vague significance, which will defeat the policy. The duty of the court, where the meaning is ambiguous, is to. construe the words used against the insurer, who framed them, so as to validate the policy, rather than destroy it. London Assurance v. Companhia De Moagens Do Barreiro, 167 U. S. 157, 17 Sup. Ct. 785; Imperial Fire Ins. Co. v. Coos Co., 151 U. S. 462, 14 Sup. Ct. 379; National Bank v. Insurance Co., 95 U. S. 673. This disposes, of all the assignments of error made by the plaintiff in error, and leads to an affirmance of the judgment.