114 Tenn. 227 | Tenn. | 1904
delivered the opinion of the Court.
The Traders’ Insurance Company had a general form of policy, which, among other provisions, contained the following: “This entire policy, unless otherwise provided by agreement endorsed herein or added hereto, shall be void ... if (any usage or custom of trade to the contrary notwithstanding) there be kept, used or allowed, on the above-described premises, benzine, ben-zole, dynamite, ether, fireworks, gasoline, greek-fire, gunpowder, exceeding twenty-five pounds in quantity, naptha, nitroglycerine, or other explosives, phosphorous or petroleum, or any of its products of greater inflammability than kerosene oil of the United States standard,” etc.
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions, as may be endorsed hereon, or added hereto, and no officer, agent, or other representative of this company, shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon, or added hereto, and as to such provisions and conditions no officer, agent or representative, shall have such power, or
It was the custom of the company in adopting this general form of policy to different kinds of business, to attach thereto a “rider,” or printed slip, which was varied to suit the special kind of business.
The defendants in error were hardware merchants in Columbia, this State, and when they insured their stock with the plaintiff in error the general form of policy above referred to was applied to that business by attaching to the policy the following rider or slip, known as “the hardware store form.” viz.: $2,000 “on stock of shelf and heavy hardware, iron, steel, cutlery, stoves, nails, furniture, sporting goods, tinware, and on such other merchandise as is usually kept for sale in a retail hardware store.” Permission is then given to- keep kerosene oil of a specified grade; also twenty-five pounds of gunpowder, in close tin cans; and a gasoline stove for exhibition purposes. The rider closes with the provision : “This slip is hereby attached to and (made) a part of policy number 1065518 of the Traders’ Insurance Company of Chicago, Illinois.”
At the time the policy was issued the defendants in error were accustomed to keep in stock not exceeding fifty pounds of dynamite, and they continued to do so up to the date of the fire. When the fire occurred they
The company refused payment, and is now defending on the ground that the above-mentioned dynamite was kept in stock.
Evidence was introduced in the court below to the effect that it was usual in the retail hardware business to keep a small amount of dynamite in stock, and sell it over the counter.
The circuit judge charged the jury, in effect, that, if such was the usage in the retail hardware business, then the defendants in error did not violate the terms of the policy by keeping such goods.
Judgment having been rendered against the company, it appealed, and has assigned errors.
The errors assigned are, in substance, (1) that there was no competent evidence of such usage of trade, and (2) that his honor incorrectly construed the policy.
Both assignments must be overruled.
As to the first point: The witnesses testified generally that they knew that it was the usage of the business to so handle dynamite. On being pressed in cross-examination, they were able to specify only the towns of Columbia, Pulaski, Lewisburg, Lawrenceburg, Fayette-ville, Shelbyville, and the city of Nashville. This covered seven counties of the State. One of the witnesses also testified without objection that he had been told by
Even laying aside the last item of evidence, we think the testimony is sufficient to show the requisite generality to make the usage good. It is not necessary that it should extend to the whole State. It is sufficient that it is generally recognized and observed by those engaged in the kind of transactions to which it applies within the region where it is claimed to exist, and it is not essential that it be observed in every individual transaction. 29 A. & E. Ency. Law (2d Ed.), page 392 and note 3, citing Rastetter v. Reynolds, 160 Ind., 133, 66 N. E., 612; Gleason v. Walsh, 43 Me., 397. See, also, Harper v. Pound, 10 Ind., 32, 36; Grant v. Lexington, etc.,Ins. Co., 5 Ind., 23, 61 Am.Dec. 74; Spears v. Ward, 48 Ind., 541; Cox v. O’Riley, 4 Ind., 368, 373, 58 Am. Dec., 633; Morningstar v. Cunningham, 110 Ind., 328, 334, 11 N. E., 593. 59 Am. Rep., 211; Fulton Ins. Co. v. Milner, 23 Ala., 420, 427, 428. And it is settled that insurance companies are bound to inform themselves of the usages of the particular business insured, and they are presumed to know such usages. 29 Am. & Eng. Ency. Law (2d Ed.), pages 393, 394, and notes.
We are of the opinion that the evidence introduced was properly allowed to go to the jury, and that it was sufficient to support the verdict so far as concerns the point to which it was addressed. The first assignment is therefore overruled.
The second point concerns the construction of the pol
It is a fundamental rule in the law of insurance that the policy shall be construed most strongly against the insurer, and liberally in favor of the insured. 1 Joyce on Insurance, section 222. In construing a condition or stipulation in a policy, doubtful and ambiguous provisions, or those in favor of the insurer, must be taken most strongly against the company. Vette v. Clinton F. Ins. Co. (C. C.), 30 Fed., 668. In Kratzenstein v. Western Assurance Co., (N. Y.), 22 N. E., 221, 5 L. R. A., 799, 801, it is said:
“Where an insurance contract is so drawn as to be manifestly ambiguous, so that reasonable and intelligent men on reading it would honestly differ as to its meaning, the difference should be resolved against the company, because it prepared and executed the agreement and is responsible for the language used and the uncertainty thereby created;” citing Allen v. St. Louis Ins. Co., 85 N. Y., 473; Hermann v. Merchant’s Ins. Co., 81 N. Y., 184, 37 Am. Rep., 488; Dilleber v. Home Life Ins. Co., 69 N. Y., 256, 263, 25 Am. Rep., 182; Hoffman v. Aetna F. Ins. Co., 32 N. Y., 405, 88 Am. Dec., 337.
And in a note to Badenfeld v. Mass. Mut. Accident Association, 13 L. R. A., 263, it is said:
“Where the terms of a policy are susceptible without violence of two interpretations that construction which is most favorable to the insured, in order to indemnify him against loss sustained, should be adopted,” citing
With this rule of construction in view, it seems there can be no real di faculty in reaching a correect conclusion as to the meaning of the policy of insurance under examination in the present case. The general form contains the provision that dynamite and certain other substances shall not be kept by the dealer, but contains another provision that the terms of this general form may be modified by additional agreements made by the company or its agents and attached to the policy. There was such an additional agreement, which provided that the policy should cover such merchandise as is usually kept for sale in retail hardware stores and the evidence shows that dynamite, in the quantities carried by the defendants in error, was such merchandise. Under this statement of the matter, which is a correct statement of the terms of the policy, it seems there could be no> real doubt that the defendants in error did not violate the terms of the policy when they carried the small amount of dynamite referred to in stock.
We are invited by counsel for plaintiff in error to a special consideration of the following words used in the hardware clause: “On stock of shelf and heavy hardware, iron, steel, cutlery, stoves, nails, furniture, sporting goods, tinware, and on such other merchandise as is usually kept for sale in a retail hardware store.” Special stress is laid by counsel on the words “such other mer
Counsel have discussed to considerable extent in the able briefs filed the question at large when the general inhibitions contained in fire policies as to the class of goods will be controlled by the description of the stock insured in the special policy under examinaton. It is-perhaps, not necessary that we should go further into this matter, but we shall refer to some of the authorities bearing upon the point.
In 1 May on Insurance, section 238, it is said:
*237 “While, however, as we have seen, if the policy insures only one class of articles, and expressly excludes other classes, the keeping of an article in the 'excluded class, although it be usually kept with the class of goods actually insured, will avoid the policy, yet if the policy describe property, the stock insured, as ‘such as is usually kept in a store,’ this qualification enlarges the scope of the policy, so that it will attach to and cover memorandum articles, or any articles ehumerated in the non-insured classes. The keeping of the memorandum articles is usually made to avoid the policy, unless otherwise provided therein. And this qualification of the description of the subject-matter is equivalent to a provision in the policy whereby the memorandum articles are permitted to be kept and insured. So where the policy is upon merchandise ‘such as is usually kept in country stores.’ Under such a description of the risk all articles such as can be shown to be usually kept in country stores are covered and protected by the policy, although they may be enumerated in the second ‘(prohibited articles)’ classes of risks. If fireworks are usually kept in confectionery stores, the keeping of them will not violate a policy covering the usual stock of such stores, although they are expressly prohibited in the printed provisions.”
As fully sustaining the foregoing, we cite the following authorities: Yoch v. Ins. Co. (Cal.), 44 Pac., 189, 34 L. R. A., 857; Niagara Ins. Co. v. Degraff, 12 Mich., 124; Liverpool & London v. Orr (Miss.), 56 Am. Rep., 810, 811; Collins v. Ins. Co. (N. C.), 28 Am. Rep., 322;
The subject is quite fully discussed in the above cases, most of which axe easily accessible, and we need not pursue the subject further. Some observations are made in the briefs of counsel for plaintiff in error concerning the controlling nature of writing entered upon the face of a policy as distinguished from a subsequent agreemeent typewritten or printed and pasted thereon. There is no real difference in principle.
We are referred by counsel for plaintiff in error to People’s Ins. Co. v. Kuhn, 12 Heisk., 515, as an authority in favor of its contention. That case, however, can give to plaintiff in error no aid, for two reasons. In the first place, the turning point in the case was a clause which appeared in the policy there under construction, which does not appear in the present policy, viz.: “The use of general terms, or anything less than a distinct, specific agreement, clearly expressed, and indorsed on the policy, shall not be construed as a waiver of any printed or written condition or restriction therein.” Sec
For the reasons above given, we are of opinion that there was no error in the action of the court below, and the judgment of that court is affirmed.