Lucas v. Insurance Co.

23 W. Va. 258 | W. Va. | 1883

GREEN, JüDfiE :

The principal question in controversy in this case is the true construction of this clause in the policy issued by the defendant to'the plaintiff: “This policy AAÚtnesseth, that C. Y. Lucas having paid to the Liverpool and London and Globe Insurance Company thirteen dollars for the insurance against loss or damage by fire-of the property hereinafter described, namely, two thousand dollars on his stock of pianos, organs and other musical instruments, sheet music and such other goods as are usually kept for sale in a music store, his oavu or held by him in trust or on commission or sold but not delivered, contained in the first story of the three and tAA'o story brick, slate-roof building, situate Eo. 1227 Avost side of Market street, Wheeling, West Virginia, the five directors of the said company, Avhoso names are hereto subscribed, do hereby agree that from the 22d day of May, 1879, until the 22d day of May, 1880, the funds and property of the said company shall be subject and liable to pay, reinstate or make good to the said assured such loss or damage as shall be occasioned by fire to the property above mentioned and hereby insured not exceeding said sum.” The main difficulty in construing this clause is to determine, what character of property in said first story of said building was thereby insured. It is described as “his stock of pianos, organs and other musical instruments, sheet music and such other goods as are usually kept for sale in a music store, bis own or held by him in trust or on commission or sold but not delivered.”' Language more or less resembling this has been frequently construed, when found in fire insurance policies, as descriptive of the property insured. "We will refer to a number of these cases, as they will greatly aid us iii interpreting this language.

In the ease of London and N. West. Rail. Co. v. Glyn, 1 Ell. & Ell. 652 (4 Bennett’s Fire Ins. Cas. 341), the goods of the insured, which were included in the policy of insurance, are thus described: “Goods their own and in trust as carriers in a warehouse situate at the Camden town station of the London and Northwestern Railway.” "Wrightman, J., espressing the views of the court'says: “The question in this case is, whether the plaintiffs are entitled under this policy to recover more than their own particular interest in the goods, which they as carriers had in the warehouse, when it was burnt. I think that they are; and that they ought to-recover the full value of the goods. They must in my opinion be considered as having insured the goods, which they held in trust as carriers, for the benefit of the owners, for whom they will bold the amount recovered as trustees, after deducting what is duo in respect to their own charges upon the goods. It is not contended, that there is anything illegal in this policy. The plaintiffs are clearly entitled to recover something; the only question is how much. Now when the terms of the policy are looked at, it appears that the plaintiffs thereby insure ‘goodstheir own and in trast as carriers’ in the warehouse. Thus a distinction is drawn between their own goods and goods which as carriers they hold for other people; and it appears to me that both classes of 'goods were meant to be fully covered by the insurance, and that the description of some of the goods as ‘goods in trast as carriers’ was inserted for the express purpose of protecting the interest of the owners of such goods as well as the more limited interest of the plaintiffs. It is true that this insurance is in the nature of a voluntary trust undertaken by the plaintiffs without the knowledge of the cestias que trust the owners of the goods; but it is a trust clearly binding on the plaintiffs in equity, who will hold the amount which they now recover, in the first place for the satisfaction of their own claims, and in the next, as to the residue, in trust for the owners. I have no doubt that the intention was as I have; stated. The circumstances that the plaintiffs in consequence of the non-compliance with the carriers’ act are not liable as carriers, to the owners for the loss of the goods, is not, as it seems to me, very material to the present, question. In Waters v. The Monarch Insurance Co., 5 E. & B. 870, the plaintiffs being warehouse men and therefore not insurers, were not liable to the owners of the goods, which were burnt; but the court hold that that fact did not prevent the insurance company from being liable to the plaintiffs for the amount of the full value of the goods, although the utmost interest, which the plaintiffs themselves had in the goods, was to the extent of their warehouse charges, for which they had a lien upon them.”

The case of Waters v. The Monarch Insurance Co., 5 E. & B. 870, referred to is reported in 4 Bennett’s Fire Iiis. Oases 49. In this case two policies of insurance were sued on, in one of which the property insured was described as “goods in trust or on commission in a certain warehouse.” In the the other the goods were described as “corn and flour the property of the- assured, or held by them in trust, or on commission on any of the public wharves in five miles of London.” This insurance was taken by a corn and flour factor; no charge was made to his customers for insurance, nor were they informed of the existence of these policies. It was decided, that when the warehouse of the insured was burned and his customer’s goods destroyed, the plaintiff's were.entitled to recover their full value; for the customer’s goods “were in trust” within the meaning of these policies. Lord Campbell, C. J., says: “Wliat is meant in • those policies by the words ‘goods intrust?’ I think that means goods, with which the insured were intrusted, not goods held in trust in the strict technical sense, so held that there was only an equitable obligation on the assured en-foreible by subpeena in chancery, but goods with which they were intrusted in the ordinary sense of the word. They were so intrusted with goods deposited on their wharves; I can not doubt the policy was intended to protect such goods, and it would be very inconvenient if wharfingers could not protect such goods by a fioatiug policy. Then, this being the meaning of the policy, is there anything illegal in it? It can not be disputed it would be legal at common law; and 1 think that a person intrusted with goods can insure them without orders irom the owner, and even without informing him there is such a policy. It would be most inconvenient in business if a wharfinger could not, at his own cost, keep up a -floating policy for the benefit of all those who might become bis customers. The last point that arises is: To what extent does the policy protect those goods ? The defendant says it was only the plaintiffs personal interest. But the policies are in terms to make good “all such damages and loss as may happen by fire to the property hereinbefore mentioned.” That is a valid contract; and if the property is wholly destroyed, the value of the whole must be made good, not merely the particular interest of the plaintiffs. They will be entitled to apply so much to cover their own interest, and as to the rest will be trustees for the owners. The authorities are clear that an assurance made without orders may be’ ratified by the owners of the property and then the assurors become trustees for them.”

These English decisions have been generally followed in this country. Thus in Siter v. Morrs, the policy of insurance against fire of a particular building of a commission and forwarding firm covering “merchandise generally and without exception, their own or held in trust or on consignment,” was decided to apply to property in the building destroyed by fire consisting of household furniture, wearing apparel and books received and held in deposit by the firm subject to the order of the owners, as well as to the property of the firm, and goods consigned to them on commission; and the owner can recover his proportionate share of the amount awarded by the policy and paid over by the insurance company to the firm,in an action for money had and received. The court says: “Such policies are adapted to the varied wants of a large mercantile community, and the construction which gives to all the property fairly within the language used equal protection does but carry out the true meaning and actual purpose of the parties in whose name the instrument was obtained. That it covers the whole value ol all such property as between him and the insurer and not the mere interest of the former had been dceided in Deforest v. Fulton Fire Insurance Co., 1 Hall’s R. 84, 118, 136. That such was the intention of the parties it seems to me impossible to doubt. What other meaning would the parties have had?. Why, having provided for their own property and property held on consignment, was that held in trust mentioned ? What else does it mean in this connection, but property the custody and possession of which was in themselves but the actual ownership in others ? The defendant’s business sufficiently indicates this. At a small expense, much more than-repaid by their augmented business, induced by the' confidence which an insurance would inspire, they procured their policy. Its terms places all the goods 'within the warehouse from time to time on the same level, all are equally protected.”

In The Home Ins. Co. v. Favorite et al., 46 Ill. 265, the property insured was thus described in the contract of insurance sued on : “Hogs, cattle aud the products of the same, salt, cooperage, boxes, and articles used in packages, their own or held by them in trust or on commission or sold but not delivered, contained in certain buildings specified.” The court in deciding the case 'on page 270 says: “It is again urged, that the appellees are not entitled to recover for the loss of coopers-ware owned by Cole & Sullivan on storage with them at the time of its destruction, as it was not on commission or held legally and technically in trust.” In the case of Stillwell v. Staples, 19 N. Y. 401, if was held that a policy of insurance upon goods ‘the property of the insured or held by him in trust’ covers cloth intrusted to him for the purpose of being manufactured into clothing. The court says it is quite apparent, that the words ‘in trust’ as used are not to be taken in any strict or technical sense, which would limit their operations to cases where the title to goods had been vested ina trustee, subject to some specific trust to be executed by liim, for several owners. In the first place they would be entirely unnecessary for any such purpose, and would add nothing to the force of the policy. Again the structure of the clause itself shows the meaning to be different. The anthithesis shows the words ‘in trust’ are meant to cover goods, not the property of the insured. But goods held in trust in the technical sense suggested would be as much his property, as between him and the insurer, as those belonging to him in his own right.’ The reasoning of the court in this case is sound and fully covers the objection raised in the case at bar. We are therefore of opinion, that the contract of insurance covers property intrusted to the appellees for a compensation.”

So in Phœnix Ins. Co. v. Favorite et al. 49 Ill. 262, the court say: “The barrels of Cole & Sullivan are covered by the policy which expressly applies to certain articles held in trustor on commission. We do not understand the term ‘trust’ to be used in any technical sense but to apply to ordinary bailments.”

In the case of Hough, Clendening & Co. v. Pres. and Directors People’s Fire Ins. Co., 36 Md. 400, it was decided that “the words ‘held in trust,’ applied to goods insured, mean goods, with which the assured is intrusted, not goods held in trust, in the strict technical sense, so held that there is only an equitable obligation in the assured, enforcible by subpoena in chancery, but goods with which they are entrusted in the ordinary sense of the word.” It was also decided “that where a policy of insurance is couched in plain and unambiguous language, resort to it alone must be had to determine the intention and meaning of the parties thereto; parol proof is inadmissible for such purpose.”

In the case of Snow v. Carr, 61 Ala. 363, it was held, that a policy taken out by piano and music-dealers against loss by fire, describing the property as “their own or held in trust” will in the absence of evidence to the contrary cover apiano left with them for sale or rent. In such case the. insured holds the amount collected as trustee for the owner of such goods, as well as those held in his own right; and the failure to make proof of the loss of the goods of other persons, the value of his own goods being more than the amount of the policy, which he collected in full, will not pi’ejudice the rights of such persons; nor can he claim to have the loss of his own goods- first made good out of the fund received, before owners of other goods can share therein, nor can he defeat an action by the owner of such goods for his share of the insurance-money, because such owner never requested any insurance, and did not know it was taken out until after the loss, and failed to ratify expressly or otherwise the acts of the insured in taking out the policy before the payment of the loss.”

In this case was involved the interesting question, whether, if the amount of the insurance is insufficientto pay the entire loss by fire, the parties, who took out the insurance and paid for it without the knowledge even of the other party, whose goods he “held in trust,”' could apply the insurance-money first to pay? for the goods he owned, which were destroyed by fire. The court held he could not, but that he must apply’ them ratably to pay? his own loss aud the loss of those persons whose goods he thus “held in trust.” This is an interesting question; but as it does not arise in the ease before us, I express no opinion upon it.

In this Alabama case the court also permitted parol evidence to be heard on the question, what goods were intended to be included in. the phrase “their own or held in trust.” In this respect this case is in conflict with the Maryland decision above referred to; and though the determination oftlie case before us would ilot be affected, whether we follow the rule laid down in the Maryland case or in the Alabama case, yeti will say? that it does seem to me, that the rule laid down in the Maryland case is the only safe one. I can not see how we can hold words constantly used in policies, and which have received a uniform and certain construction, as ambiguous ; or how we can permit any parol evidence to be heard in putting a construction on such words.

In the case of Lockhart v. Cooper, 87 N. C. 149(42 American R. 514), the defendants were warehousemen, had a fire-insurance on leaf tobacco by them “owned or held in trust or on commission or sold and not delivered;” the plaintiff bought of .them twenty-five particular and specified hogsheads of tobacco and had removed five of them, when the rest were destroyed, by the fire; the warehousemen, the defendants, lost tobacco of their own exceeding in value the whole insurance. It was held that all of the twenty-five hogsheads of tobacco had been sold and delivered to the plaintiff, and he could not therefore recover any of the insurance money of the warehousemen. The court reviews a number of the cases above cited and says: “These and other authorities relied on by the appellant, recognize an insurable interest in the depositary who has a charge upon the goods committed to his custody with a corresponding responsibility for their sale-keeping and forwarding; but none reveal a case, in which there has been an absolute sale and delivery, transferring both title and possession to the vendee, and the goods are temporarily left (without actual removal) in the place of deposit.” The court then refers to the case of Waring v. Fire Insurance Company, 45 N. Y. 606 (6 Am. Rep. 146), and quotes from Dolgor, Judge, which shows that in that case the property insured was described as “refined carbon oil and packages containing the same, their own or held in trust, on commission or sold but not delivered contained in bonded warehouse.” Subsequently part of the property was sold but remained in the possession of the insured until consumed by fire. The court said: “"Wo have' but little difficulty in holding from the peculiar phraseology of the policy, that something other was meant than property of which a contract of sale had been made but of which no delivery had .yet taken place. ‘Sold but not delivered’ is a phrase common with insurance men and has an ascertained and definite meaning. It applies to property, of which a contract of sale has been made, but of which the ownership has not been changed by a delivery in pursuance of the contract. ‘Sold but not removed’ is another and, we deem, anew form to express something else. We judge that it was meant to cover that, which had been sold, and of which a legal, binding delivery had been made, the ownership and right of control of which had passed, but which had not beeu in fact removed, of which no change of place indicated a change of owmership and possession.”

Upon the reasoning of Judge Dolger the Uorth Carolina coui’t passed its decision. After quoting it they say: “In our opinion this is a fair and reasonable interpretation of the claim of the policy; and the distinction is probably drawn between the expressions ‘sold but not delivered’ and ‘sold but not removed.’ The first contemplates goods sold but in a legal sense not delivered, so as to vest the title and possession in the vendee; the latter refers to what is in law a sale and delivery, but when the goods remain where they were. The delivery may be without the removal; and the latter word is substituted to give a wider scope to the contract and to extend its protection to cases not embraced before.” In other words I understand the Worth Carolina court as construing the words “sold and not delivered” as carrying with them a negative pregnant, “but not goods sold and delivered. The case refers to the construction of these words in a policy, not specially to the words “held in trust.”

In Jackson, Owsley Co. v. Ætna Insurance Co., 16 B. Mon. 263, it was held, that “a policy, insuring all the articles constituting the stock of a pork-house and all articles contained within the building described and appurtenant thereto, covers all within those buildings without regard to the particular ownership of each or any article, which was at the risk of the insured.”

In The Home Insurance Co. v. The Balt. Warehouse Co., 93 U. S. 527, it was decided as follows : “A policy of insurance taken out by warehouse-men against loss or damage by fire on merchandise tlieir own or held by them in trust, or in which they have an interest or liability, contained in a designated warehouse covers the merchandise itself, and not merely the interest or claim of the warehouse-man; and if the merchandise be destroyed by fire, the assured may recover its entire value, not exceeding the sum insured, holding the remainder of the amount recovered after satisfying their own loss as trustees for the owners. By ‘merchandise held in trust’ is meant goods intrusted to them for keeping.” Justice ¡Strong, delivering the opinion of the court, page 543, says: “It is undoubtedly the law, that wharfingers, warehouse-men and commission-merchants, having goods in their possession may insure them in their own names and in case of loss may recover the full amount of insurance for the satisfaction of their own claims first and bold the residue for- the owners. (Waters v. Monarch Ins. Co., 5 Ell. & Bl. 870; London and Northwestern Railway Co. v. Glyn, 1 Ell. & Ell., A. B. 652; DeForest v. Fulton Ins. Co., 1 Hall 136; Siter v. Morrs, 13 Penn. St. 219.) Such insurance is not unusual oven when not ordered by the owners of goods, and where so made it inures to their benefit. The words ‘merchandise held in trust’ aptly describe the property of depositors. The warehouse company held merchandise in trust for their customers not, it is true, as technical trustees hut as trustees in the sense, that goods had been entrusted to them. That such is the meaning of the words as used in this policy, we cannot doubt. And such has been held by courts of the higher authority to be the meaning of similar words in fire policies.”

Other decisions of a like character might be cited; but these are abundant to enable us to safely determine what property was covered by his insurance in the case before us. It is described as “his” (the insured’s) “stock of pianos, organs and other musical instruments, sheet-music and such other goods, as are usually kept for sale in a music-store, his own or held by him in trust or on commission or sold but not delivered, contained in the first story of” a described house. It is not questioned but this includes not only pianos, which belonged to the insured, in the words of the policy' “his own,” but also pianos in his store, which he had there belonging to other persons for sale “on commission.” But it is claimed by the appellant’s counsel, that no other piano in this store-room except those held for sale on commission could be regarded as covered by this insurance. That a piano, which had been left there, in order that the assured might rent it or might send it to a northern city for repairs or for any other purpose than sale, would not bo regarded as insured against fire while there.

It seems to me to be impossible to put such a construction on the language used in the policy. The policy in describing the character of the goods to be insured says : “Such other goods as are usually7 kept tor sale in a music-store.” This would of course exclude from the insurance an over-coat even had it been put in the store for sale. On the other hand a guitar would be included in the insurance, as guitars are usually kept in music-stores for sale, and it would be so included for anything which is here said, though it had been left there not for sale but for any other purpose, for which guitars may be in a music-store, as for instance, to have strings put on it or to have it repaired in some other way. But, as if to make it entirely clear that a guitar left at the store for any such purpose was included in this insurance, the policy declares, that all such goods in this store were included in the insurance, whether they belonged to the assured (“his own”) or were “held by him in trust.” And these words “held by him in trust” have, as we have seen, received a uniform interpretation by the courts and mean entrusted to him for keeping or for any other 'purpose connected with his business. Ho court has ever interpreted these words as meaning entrusted to him for sale only. In fact it would be absurd to so interpret them in this policy ; for then they would be entirely unmeaning. Such property entrusted to the insured for sale is expressly covered by other words in this policy; for the policy in express words covered or insured such property-“on commission” that is entrusted to the assured for sale on commission.

In- the case of Snow v. Carr, 61 Ala. 364, the words describing the goods insured in the policy were almost identical with the words of this policy. They were: “Their stock of pianos, organs, musical instruments, musical merchandise kept bjr them for sale, their own or held in trust, or sold but not delivered, contained or to be contained in the two story brick slate and tin roof building Ho. 102 and 104 Dauphin street.” The court decided that these words included a piano left at their store for rent. Of course it would have included a piano left there for repair, to put pew strings upon it or for any other purpose connected with the store. That court held, as all the other courts have held, that the words held in trust meant entrusted to flic assured for any purpose connected with his business.

The first clause in the policy in this case provides, that the defendant “shall make good to the said assured such loss or damages, as shall be occasioned by fire to the property above mentioned and hereby insured.” How the property above pientioned is “such property whether his own or held by himt in trust.” Tliere is here nothing ambiguous in the description of the property insured. It is as broad as possible. The subject was pianos, organs and other musical instruments, sheet, music and such other goods as are usually kept for sale in a music store. It was not merely an interest in these goods. These goods in this store owned by the assured if he had any were covered, and so were any such goods, which he held in trust. If only the interest of the assured in these goods held in trust were intended to he insured, why did not the policy say the interest of the assured in such goods held in trust ? The defendant binds itself “to make good the damages to the property above mentioned,” not the damage which the interest of'the assured in such property might sustain by fire.

Again the ninth clause of this policy provides “that it shall be optional with the company to repair or replace the property lost or damaged with other of like kind and quality within a reasonable time.” Here and nowhere else is any interest in the goods injured other than the entire ownership in any way alluded to. It would therefore seem clear, that these goods in this store were the property intended obviously to be insured, and not the interest of O. Y. Lucas in them. So such policies have always been interpreted, as the cases, we have cited, show clearly. And while if a piano of a third person “held in trust” by 0. Y. Lucas in this store-room was destroyed by fire, he would be entitled to receive from the company its value, yet he would hold the amount so received for the owner of the piano after deducting any charges against the property which had accrued while he thus held it in trust. The insurance company would of course be utterly indifferent as to the amount of these charges. The company would pay identically the same amount, whether those charges were great or small. It would seem to follow, that the construction of their contract, the policy issued by them, as to what property was insured could in no manner depend upon any contract or the want of any contract between the assured and the owner of the property. It would, so far as the construction of the policy was concerned, be totally immaterial, whether the assured charged or did not charge the owner of the property for his care of the property “held in trust-.” In either case, if destroyed hy fire, the in-, surance company would he responsible for its value, if the policy covered property “held in trust.” The only question which could arise in such case would-be, whether or not it was contrary to public policy to permit a business-man to insure the property of others “held in trust” by him, when he had no interest in the property and no charge against it. I can see no public policy, which is violated in allowing anyone, who is entrusted with the possession of the property of another for any purpose, insuring it, while it is in his charge. It is very true that to prevent insuring from becoming a mere gambling transaction, the law does require the insured to have an insurable interest. (Quarrier, Trustee, v. Insurance Co., 10 W. Va. 522.)

In Sheppard v. Insurance Co., 21 W. Va. 379 this Court thus lays down .the law on this subject: “The assured has in the property insured an insurable interest, whenever he holds such a relation to it, that its destruction by fire would involve him in pecuniary loss, or would involve others in pecuniary loss, for whom he acts, or whom he represents. Thus for instance, a common carrier has an insurable interest in the goods carried by him, which he may insure to their full value without regard to his liability to the owner of the goods. (Crowley v. Cohn, 3 B. & Ad. 478; London & Northwestern Railway Co.v. Glyn, 1 Ell. & Ell. 652.) So has a warehouse-man, though he is liable only for his own negligence to the owner. (Waters v. Monarch Assurance Co., 5 El. & Bl. 870.) To give a party an insurable interest in property, it is not necessary that he should have any pecuniary interest therein, or that he should be even responsible for its safekeeping. If he has the care and possession of the property he may insure it in his own name for the benefit of others; and the insurance will inure to their benefit upon their subsequent assent to the insurance even when this assent is after the loss has occurred. (Waring v. Indemnity Insurance Co., 45 N. Y. 606, 6 Am. R. 146.)”

Again in this case on page 380 it is said: “It is obvious, that the main object of the law in requiring the insured to have an insurable interest in the property insured is to discourage and prevent parties having no control or management of property and no sort of interest in its preservation from fire but being mere strangers to the property obtaining policies on such property against its destruction byfire. Such policies would amount to nothing but wagers, whether or not the property would be destroyed by fire in a specified time. And public policy rather than justice to the insurance company requires, that the law should pronounce, as it .does, such policies void.” In that very case (21 ~W. Ya. 369, syllabus 7) this Court decided: “If the personal estate of a decedent be insufficient to pay his debts, the administrator of such decedent has an insurable interest in the buildings, which belonged to his decedent; for our statute in such case authorizes him as administrator to bring a suit in chancery to have such buildings sold to pay the debts of the decedent.”

This statute prevents'him in such case occupying the position of a mere intermeddler, a person making a wager in reference to whether or no buildings would burn in a given time. He has not a particle of pecuniary interest in such buildings, and yet he may insure them, though he has no possession of them, merely because he may bring a suit to have them sold. These principles, it would seem, clearly permit warehouse-men, wharfingers, commission-merchants, keepers of music-stores or anybody else, whose business required them to keep the property of others in their possession on any trust or for any purpose, to insure such property,' while in their possession, whether they have any pecuniary interest in the property or not, or whether they make any charge for keeping the property or not. Their possession and charge of the property abundantly justify them in the insuring ot it. There is no public policy violated in permitting them to do so; for with them it is no wager whether or no the property will burn in a specified time; for if it burns, they make not one cent thereby, for the insurance-money, which they receive, they are bound immediately to pay over. So far from making money by insuring the property of others in their possession and charge, they incur a cost, the immediate benefit of which is reaped by others, their customers. The only inducement for their thus insuring the property, which they thus “hold in trust,” is to increase the confidence of the community in them as business-men, and tlins increase their legitímate business. For this they may be justified in paying a larger insurance for having inserted in their policies not only that their own property hut also property held by them in trust for others shall be covered by the insurance. Such an insurance may be advantageous to them as well as to the insurance company, while to the general public it may be decidedly beneficial. And I'see no reason why the law should forbid the making of such a com tract. I can see no public evil, which is likely to result from the making of such contracts.

To apply these principles to the case before us, the piano of A. Wilson Kelly came into the possession of C. Y. Lucas as the keeper of this music store. As the keeper of this store he was employed to remove this piano from Mr. Kelly’s residence to a boarding-house. He could not get it into the room into which he was directed to remove it, and therefore he took it to his store. Mr. Kelly directed him to put it there till he, Lucas, could send it to Hew York to be repaired, which he instructed him to do, but told him first to write and see if he could get the makers .of the-piano to repair it without charge, but whether they would or not he should send it on for repair., Before he had ascertained whether the maker would charge for such repairing, the store is burned down, and this piano destroyed. The evidence does not show, what was the understanding, if any, between Kelly, and this plaintiff, Lucas, in reference to the pay he was to receive for bargaining with the piano-makers for repairing this piano, or for the trouble he would be at in forwarding it, or receiving it again when returned; and I presume there was no understanding, but of course this being done at Kelly’s request, he was bound to pay Lucas then for what his . services were worth. See Hurst’s Adm’r v. Hite, 20 W. Va. 206; Reas’ Adm’r v. Hotter & Bro., 26 Gratt. 585.

As all this was in the regular line of business of Lucas as - a keeper of the music store, as a matter of course Kelly expected to pay him for all his services. "We consider it however utterly unimportant whether he did of not, for Lucas had a right, if he chose, to insure not only his own property in this store but also the property of all his customers' or others who should entrust their property to him. His possession of it and responsibility for its keeping, .however slight that may have been, gave him an insurable interest in the property, whether he charged for keeping it or for his services in connection with it or not. Having this right he did enter into such contract with the defendant. The terms of this contract are unambiguous; and under it the insurance company, the defendant, was responsible not only for all the insured property in this store, belonging to Lucas, which was destroyed by the fire of March 25, 1880, but also for the value of this piaho, which Lucas held in trust at that time, and which was destroyed by this fire and included in the insurance.

But it is claimed by the appellant’s counsel, that this piano is not included in the property insured, because the fourth article of the policy, which was in print, provides “that if the interest of the assured in the property be any other than the entire unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company and so expressed in the written part of the policy; otherwise the policy shall be void. Goods held in storage must be separately and specifically insured.” As property was to be insured, which should afterwards come into the store of the assured, not belonging to him but to be “held by him in trust” for others, his customers, this foiu’th clause required this to be expressed in the written part of the policy; and in obedience to this requirement it was so expressed in that part of the policy, as we have seen. Of course, the provision in the printed part of the policy, that goods held in storage should be separately and specifically insured refers to goods in existence and held in storage, at the time the policy was executed, and as a matter of course it has no reference to property, which should thereafter come into the store, because of course this would not have been separately and specifically insured. Yet we have seen that the written part'of this policy especially provided for the insuring of property, which should afterwards come into the store and be “held in trust.” There is a provision to be found in the ninth clause of this policy, which it seems to me shows the real understanding of the parties, when this policy was issued. It is this: “In case of loss on property held in trust or on commission, or if the interest of the insured be other than the entire and sole ownership, the names of the respective owners shall be set forth together with their respective interests therein.” This shows that the understanding oí the parties was, that after the loss took place, the interest of those third persons, owners of goods entrusted to the assured, were to be disclosed, and not till then. Of course their names and interest could not be disclosed till then; but the fact that they were then to be disclosed, seems to me to show clearly, that it was understood, that they, or rather their goods, were insured, whosever they might turn out to be.

It is also insisted by the appellant’s counsel, that if the liability of the defendant for the loss of this piano oi Kelley’s be admitted, still the judgment rendered against it by the municipal court is too great. The seventh clause of the policy provides, that in case ot any other insurance on the property the loss shall be apportioned, so that this company shall have no more to pay than its proportion, and that too without reference to their invalidity from the violation of any of their conditions in their other policies. In the amicable settlement, which was made of all the losses resulting from the fire to the property owned by the assured, Lucas, or held by him on commission, there was such apportionment made, and the Peabody Company paid its proportion three hundred and eighty-five dollars and fifty-four cents, and the balance only, five hundred and fifty dollars and sixty-two cents, which was its proportion was to be paid by the defendant. On this piano of Kelly’s it is claimed, that there was an insurance in the Fire and Marine Insurance Company of Wheeling, W. Ya., and that the municipal court, ought not to have charged the defendant with its full value, five hundred dollars, but a portion of it should have been set aside to this other company, and whether it would be enforced against them or not, it would not be charged against the defendant according to this seventh clause of the policy.

In considering this position we must first determine, whether or no at the time of this fire, March 25, 1880, there was in point of fact any other insurance on this piano. Mr. Kelly had insured some years before that in the .Fire and Marine Insurance Company of Wheeling, his residence on Twelfth street, in Wheeling, and the furniture in it including this piano at five thousand dollars. In this policy all the household and kitchen furniture other than this piano was valued at seven hundred dollars and this piano at seven hundred dollars. This policy as copied into the record expired on June 12, 1879, more than nine months before this fire took place. There is no sort of proot in the record that this policy was in any manner renewed or continued in force after June 12, 1879, except that the secretary of the company and Mr. Kelly from their testimony seem for some reason to regard it as in force; -for on March 8 or 10, 1880, Mr. Kelly applied to the secretary of that company for leave to move this piano to the boarding-house. He was told he could do so, but that some additional premium would have to be paid, as the risk was increased by the removal to a boardinghouse, but that this could be agreed upon by them. He was told, that this leave to change the location of this piano would have to be endorsed on the back of the policy, which never was done, and no leave was ever had or given to take this piano to the plaintiff’s store, nor did the secretary know that this had been done till after the fire on March 25, 1880. Upon these facts it would seem, that there was no insurance on this piano in the Fire aud Marine Insurance Company of Wheeling on March 25, 1880, first, because s® far as the record shows, the insurance which .had been on it expired some nine months and more before that time; secondly, if we were to assume that it had been renewed or continued legally, of -which there is no evidence in the record, still it had ceased to be an insurance on about March 10,1880, some two weeks before this fire; for the insurance was on the furniture in the dwelling-house of A. W. Kelly; and the moment that this piano was removed from this dwelling-house and placed in the plaintiff’s store without the knowledge of the company, the insurance upon it expired. But this is regarded by counsel of the plaintiffs in error as an invalidity of the policy arising from the violation of a condition of it; and the invalidity being of this character, according to the seventl) clause, there should be an abatement from the liability of the defendant in this suit to the same extent, as if the policy- of the Lire and Marine Insurance Company of Wheeling had remained in full force.

But what is meant iu this seventh clause, when it speaks of the invalidity of a policy from the violation of any of its conditions? In every policy of insurance there are inserted a number of conditions, which if violated by the assured forfeits the policy. Such, tor instance, as those in the policy of this Lire and Marine Insurance Company of Wheeling, “if the premises should be occupied for any trade or business,” or if the assured should keep in the property insured any gunpowder, nitro-glycerine and numerous other specified articles. How I understand this seventh clause of the policy of insurance sued on in this case to provide, that if the assured has his property insured in any other company that there should be an abatement from the amount to be paid by the defendant proportionate to this double insurance; and that this abatement shall not be prevented by the fact, that by the violation of some of these conditions the assured has forfeited his policy and can recover nothing from such other company. This is but right and reasonable. But in this case none of the conditions of the policy of the Lire and Marine Insurance Company had been violated. Nothing could be recovered from that company, not because the policy had been forfeited by the violation of any of the conditions, but because the insurance was of the furniture in the residence» of A. W. Kelly on Twelfth street. Of course A. W. Kelly could remove from his residence to any other place any of his furniture; but, as it'was insured only while in his residence on Twelfth street, the moment he moved any part of his furniture such part ceased to be insured. This was the understanding, as the evidence shows, of both A. W. Kelly and of the insurance company. As this piano was removed about March 10, 1880, to the store of C. Y. Lucas without the knowledge or consent of the insurance company, from that time it ceased to be insured in that company not by the forfeiture of the policy but by the fact that the policy ceased to cover this piano. This removal placed it, we have seeu, whore it was covered by the policy of the defendant in this suit, and at the same time placed it, where it was not covered by tlie policy of the Dire and Marine Insurance Company of Wheeling. It was in effect the same thing, as if the policy of the Dire and Marine Insurance Company had expired on March 10, 1880.

I conclude, therefore, that under no view of this case can the policy of the Dire and Marine Insurance Company, so far as it undertook the insurance of this piano, be regarded as in force on the 25th of March, 1880, when this fire took place. It had really expired, so far as the evidence shows, nine months before. Even under the apparently mistaken views of the parties to this policy it had ceased to exist some two weeks before this fire, that is, oil March 10, 1880. This being the case, there could properly be no abatement under the seventh clause of this policy.

In stating this case I have omitted a number of matters, which were proven, because I deemed them entirely irrelevant. The rights and liabilities of all parties were fixed the moment the fire of March 25, 1880, occurred. The plaintiff has certainly since then done nothing, whereby he has released the defendant from any liability. ISTor has he in any manner estopped himself from insisting in this suit on all his rights. The fact, that the agents of the defendant and other insurance-men have expressed themselves with confidence, that the defendant was not responsible for the value of this piano of A. W. Kelly; the fact, that A. W. Kelly at first thought, that the Dire and Marine Insurance Company was responsible to him, and did not then think, that the defendant in this suit was responsible for the value of his piano; the fact, that the plaintiff was at one time of the same opinion, and the fact, that A. W. Kelly is aiding in the prosecution of this suit, as lie ought to do, in no manner affect the plaintiff’s rights in this suit. The intentions of the plaintiff and of the defendant in making the contract sued upon must be gathered from the words of the contract, which are plain and unambiguous, and from no parol proof. Certainly the ideas of parties with reference to their rights under this contract, proven by their declarations nearly a year after the making of the contract aud after the expiration of it, ought to have no sort of influence with the Court in construing the contract. The plea of tender ought to have been rejected by the court, as it was not shown that the defendant was yet ready to pay the money, it admitted to he due, and did not tender it in court, as it should have done. See Co. Lit. 207a; Panel v. Nevil, 2 Dy. 150a. Hut the admission of these improper pleas in this case prejudiced no one, as it turns out.

For these reasons the judgment of the municipal court of Wheeling of June 6, 1882, must he affirmed; and the defendant in error must recover of the plaintiff in error his costs in this Court expended and damages according to law.

AkBTRMED.

Case Details

Case Name: Lucas v. Insurance Co.

Court Name: West Virginia Supreme Court

Date Published: Dec 15, 1883

Citation: 23 W. Va. 258

Court Abbreviation: W. Va.