Sampson v. Security Insurance

133 Mass. 49 | Mass. | 1882

Devens, J.

The property insured was situated “in the chambers of Rand, Avery and Company, in stone, brick and iron building No. 117 Franklin Street, Boston.” The defendant contends that the only property insured is that found in those chambers which were in the John Ritchie building, which building formed a part of the Franklin Buildings, which were erected as one structure, and each part of which had entrances on Federal Street, upon the ground that No. 117 Franklin Street was a separate building from those portions of the Franklin Buildings which abutted alone on Federal Street. The words do not require so narrow a construction as' this. No. 117 Franklin Street was an entrance only to upper stories, the fifth story of all the structure known as the Franklin Buildings, to which it gave access, being occupied by the plaintiffs for them business. Conceding that the words “chambers of Rand, Avery and Company ” are not to be separated from those which follow them, these latter words may well mean that the chambers are situated in the stone, brick and iron building to which an entrance is found at No. 117. There is no necessity for separating the chambers which are in the other portions of the same structure from those in that portion of the Franklin Buildings, because party-walls, for safety or convenience, or to indicate separate ownership, divide the structure, when doors have been made between the buildings, and the chambers have been used together for different parts of the same business. Upon this part of the case, it seems to us that the learned judge was in error; and that the plaintiff should have been permitted to recover for the small amount of goods of the value of five dollars which were situated in the upper story of the Franklin Buildings at the time of the fire.

Whether the plaintiffs can recover for those goods which were in that portion of the chambers which were in the Miller Building is a more difficult, and to the parties a much more important, matter. The Miller Building was not only separated by partition walls, with independent means of access to Federal Street, but was a building entirely distinct from the Franklin Buildings. It was not built at the same time, nor did it present the same appearance. The levels of floors were different, and it was separated from the Franklin Buildings, not by a partition wall, but by two walls which were separate and independent, belonging respectively to each structure. If the plaintiffs may recover for the property here situated, it would seem that they might also recover for property used in their business in any set of chambers which could be connected with the entrance at No. 117 Franklin Street, provided only they were in a stone, brick and iron building. It is in substance the contention of the plain - tiffs, that the operative words are “ the chambers of Rand, Avery and Company,” and that the only office of the rest of the phrase is to describe them as being reached by or having an access an No. 117 Franklin Street. But the number applies to a building described, and while, as this number is used to indicate an access to chambers in upper stories, it may be applied to all in that structure, it cannot be applied to such in other structures, even if by means of doors made through the walls of such structures access may be gained to them. Were the words “ No. 117 Franklin Street” the only words which follow “chambers of Rand, Avery and Company,” it might be held that all that was intended was to describe the access to them; but these words are used, not for this purpose, but to describe the access to the “ stone, brick and iron building ” in which the chambers are. They cannot be rejected or transposed. The rule that words may be rejected , where they are clearly inconsistent with the rest of a description, has no application, as it is entirely possible that the plaintiffs might have covered the property in their chambers in the Franklin Buildings and that in the chambers in the Miller Building by different policies. The description has no ambiguity, nor is any latent ambiguity developed when we seek to apply it to the facts, although, as thus applied, the property which the plaintiffs had in the Miller Building is not covered. When the words of a description can be satisfied, to reject a part would be to give a different interpretation to the contract from that which the parties have expressed, and therefore, we must believe, intended. Admit that we have a clear description when the words are stricken out, we have no right to strike them out if they can be construed where they are found. The description of the mode of occupation of the premises where the insured property is situate, is of great value; if any inconsistency were found between this and the locality named, there would be much ground for contending that the former should control, but no such inconsistency here appears.

The plaintiffs contend that the case is not distinguishable from Blake v. Exchange Ins. Co. 12 Gray, 265. The policy there covered personal property in “ the brick building situate on Main Street in C., known as D. & Co.’s car factory.” As thus written, it was held to cover goods in a building erected as a wing against the wall of D. & Co.’s car factory on Main Street, with an opening through the wall usually closed by an iron door, both wing and main building being used for manufacturing cars and known as “ D. & Co.’s car factory.” But the wing of a factory, one of whose walls is also that of the factory itself, deemed, used and known as a part of the factory, certainly differs materially from an independent building, although used in connection with another.

A majority of the court are therefore of opinion that the learned judge rightly ruled for the defendant, so far as the property in the Miller Building is concerned.

The result is, that the verdict must be set aside and a new trial ordered, unless the defendant shall consent to a verdict for the plaintiffs in the sum of five dollars. Ordered accordingly.