West Branch Lumberman's Exchange v. American Central Insurance

183 Pa. 366 | Pa. | 1898

Opinion by

Mr. Justice McCollum,

We discover no error in the rulings complained of in the first and second assignments. They are in exact accord with the decision of this court in Allegheny Insurance Co. v. O’Hanlon, 1 Walker, 359. In that case an inventory of goods totally destroyed was admitted, in connection with the testimony of the parties who made it, as tending to show the amount and value thereof. This is precisely what was done in the case at bar. The inventories of September 2 and October 28, 1895, were made by persons of large experience in the lumber business, and for the purpose of ascertaining the amount of lumber in the yard when each inventory was taken. They were based on 'estimates of the lumber in piles. The method of estimating it was that usually employed by lumbermen and the only practicable method of ascertaining the amount of lumber piled in the yard. Every grade and size of lumber piled there ivas inventoried separately. The manner of making the inventories ivas fully explained by the persons who made them, and the inventories, in connection with their testimony, were clearly competent for the purpose for which they were offered and admitted.

The third and fourth assignments relate to the refusal of the court to affirm the defendant’s first and second points. The points denied the liability of the defendant to the plaintiff in the suit and called for an instruction that the latter could not recover anything in it. The first point appears to be based on an alleged violation of the condition in the policy in regard to the ownership of the property insured, and the second point seems to be founded upon alleged defects in the proofs of loss. A sufficient answer to the first point is that the policy was issued to the insured “ on lumber, lath and pickets, their own, or held by them in trust, or on commission, or sold but not delivered, piled in the yard leased by Fred. Kreamer at Dauphin, Dauphin county, Penna.,” and that the plaintiff had not pai’ted with its interest in or title to any portion of the property covered by the policy at the time of the fire. The insurance was not limited to property of which the plaintiff was the sole and unconditional owner. It included property held in trust or on commission or sold but not delivered. Besides, the part of the policy quoted above is in writing and must prevail against the printed stipulations or conditions in conflict with it: Grandin v. Insurance Co., 107 Pa. 26. In answer to.the second point we may say that the supplemental proof furnishes in detail the circumstances in connection with the collection and conversion of the logs into lumber under the contract with Kreamer, and it asserts that said contract was shown to the adjusters representing the defendant and other companies, and that a copy of it was furnished to them. It also appears by the defendant’s “renewed objections to proof,” that a copy of the contract was in its hands. In view of these facts there is no force in the defendant’s contention that the plaintiff’s assertion and proof of title were defective.

The questions raised by the fifth, sixth, seventh, eighth, ninth and tenth assignments relate to the effect of the contract between the plaintiff and Kreamer upon the measure of the defendant’s liability in this suit. The defendant’s contention'is that under and by force of this contract the title to the logs passed to Kreamer, and consequently the plaintiff’s insurable interest is measured by the balance of the purchase money due under it. This is a construction of the contract to which we cannot assent. It was not intended to, and it did not, transfer the ownership of the logs to Kreamer. “ He was employed by the plaintiff to saw its logs into lumber, and for this purpose was entrusted with possession of the property.” The work he was employed to do was at all times under the supervision and direction of the plaintiff’s representatives who were authorized by the contract to take possession of the logs and mill in case the work was not being pushed forward satisfactorily or was improperly done. It required a supplemental agreement to authorize Kreamer to ship or sell the lumber, and for this purpose shipping orders were given from time to time. The lumber was to be kept fully insured for plaintiff “ as owner.” The contract was nothing more than an employment of Kreamer to do the work specified with a promise to compensate him for it in the manner stated therein. Certainly, as between the plaintiff and Kreamer, there was no transfer of the former’s interest in the logs to the latter. The defendant concedes that as “between the parties the contract upon its face would probably be held to be a bailment.” If this were so the defendant is not in a position to challenge the plaintiff’s title. It is only to prevent a fraud on creditors that a contract on its face a bailment is held to be a sale. It has been expressly decided in Burson v. Fire Association of Phila., 136 Pa. 267, that an insurance company in writing a policy does not thereby become a creditor, that it has no standing to assert that the transaction is a legal fraud; that where it is good between the parties it is good against all the world except creditors intended to be defrauded.

To the defendant’s contention that the policies taken out in the name of Kreamer should contribute to the loss, it is sufficient to say that these policies and the one in suit are not upon the same subjects, and therefore not double insurance. “ Double insurance takes place when the assured makes two or more insurances, either simultaneous or successive, on the same subject, the same risk and the same interest:” Clarke v. Western Assurance Co., 146 Pa. 561. The subjects insured in the Kreamer policies were “lumber of every discription, including lath, shingles and pickets, their own or held by them in trust, or sold but not delivered, on ground leased from John Q. Fertig, situate at Dauphin, Dauphin Co.” The policy in suit was “ on lumber, lath and pickets, their own or held by them in trust or on commission, or sold but not delivered, piled in the yard leased by Fred. Kreamer at Dauphin, Dauphin Co., Penna.” Had the term “ lumber ” alone been used it would no doubt ba.ve included the other items as it would have been understood then in its broadest acceptation. But when lath and pickets are enumerated with the lumber the latter word must be understood in its more restricted sense of sawed boards or logs. It is not consistent with the enumeration contained in the policy in suit that the term “ lumber ” should include shingles. If the parties had so understood, it would also have included lath and pickets, and these latter terms would not have been used. It follows that as the amount insured in the Kreamer policies is not apportioned among the subjects named, the amount of insurance to be placed on' the shingles is not known, and the amount on the remaining subjects duplicated in the other policies is not capable of adjustment as double insurance. To what has been said on this branch of the case we may add that the undisputed evidence shows that the plaintiff did not know of the Kreamer insurance until after the fire, nor consent to it at any time. The policy in suit was not, therefore, affected by it. See Wood on Fire Insurance, section 352. The assignments are overruled.

Judgment affirmed.