158 Mass. 124 | Mass. | 1893
This is an action on a policy of insurance purporting to run for one year from September 8, 1890, at noon. The application was made out on September 8 for the plaintiff by an insurance agent, not an agent of the defendant, and was forwarded to one Chapin, the defendant’s agent at Ogdensburg, whom it reached about noon on September 9. The property intended by the plaintiff to be insured had been burned earlier on the same day. The agent made out the policy, and after a delay of some days forwarded it. There were later dealings which we do not deem it necessary to state. The property insured was described in the policy, following the words of the application, as grain “ contained in the Elevator Building of the Ogdensburg Terminal Company at Ogdensburg, N. Y.” On September 8 there were two elevators at Ogdensburg, both operated by the Ogdensburg Terminal Company; one, a new one, owned by it; the other, an older one, owned by the Ogdensburg
Perhaps it would be pressing the principle of such cases as Kyle v. Kavanagh, 103 Mass. 356, and Raffles v. Wickelhaus, 2 H. & C. 906, too far to say that the description of the elevator containing the corn was one proper name in the mouth of the plaintiff, and another in that of the defendant, and that therefore the policy was void, and the supposed contract never made. On the other hand, it cannot be said that the description on its face pointed to the burned elevator alone, or that the defendant is in the position of having assented to words which it knew that the plaintiff was taking as describing the burned elevator. The most that can be said in favor of the plaintiff is, that the description, although meaning only one, and although most accurately fitting the elevator owned by the Terminal Company, was broad enough to apply to either elevator if the circumstances permitted and required it; in other words, that there was a latent ambiguity. See Fowle v. Springfield Ins. Co. 122 Mass. 191, 194, 198. Taking it that way, what were the circumstances ? The plaintiff relies on the fact that his grain was in the old elevator. But the policy identifies the grain by the building, not the building by the grain. The plaintiff knew that there were two elevators in Ogdensburg, and had notice that the agent applied to for insurance was at the same place. He knew that that agent would not inquire at the elevators for the plaintiff's
Still more shortly it may be said that Chapin had no authority to insure goods in the elevator which he knew was burned. Wilson v. New Hampshire Ins. Co. 140 Mass. 210. Stebbins v. Lancashire Ins. Co. 60 N. H. 65.
We see no reason to doubt that the foregoing principles would prevail in New York as well as here. The decisions relied on by the plaintiff would not have warranted the jury in finding that a different version of the common law from the one which we deem correct is accepted there. In both Lightbody v. North American Ins. Co. 23 Wend. 18, and Whitaker v. Farmers’ Union Ins. Co. 29 Barb. 312, the contract of insurance had been
It was suggested that the jury might have found that the two elevators were one, and were collectively covered by the description, because connected by a belt gallery four hundred feet long. We are of a contrary opinion.
Judgment on the verdict.