38 Pa. Super. 594 | Pa. Super. Ct. | 1909
Opinion by
This action of assumpsit resulted in a verdict in favor of the plaintiff, and represented the amount of the policy in suit. It was one of a number of policies on the same property, which aggregated a total amount of insurance carried on the building and contents of $31,250.
By this policy the sum of $750 was placed on, “A five story frame and stone hotel building, 360x40 feet, including elevators, etc., attached to and a part of the building situated on the summit of the Neversink Mountain, Reading, Pennsylvania; and' $250 on Hotel and kitchen furniture,” etc. The defendant offered no evidence, and asked the court to enter a nonsuit on the ground that certain provisions in the policy precluded a recovery under the evidence in the case. This the court refused to do, and submitted the case to the jury.
Attached to and made a part of the policy is the following clause: “ Permission granted to remain unoccupied during winter months, it being understood, however, that when so unoccupied, a competent person shall be in charge; also for other insurance.” The testimony shows that the plaintiff had been the owner of the Neversink hotel property for a number of years; that this policy was countersigned and issued by the agent of the defendant at Reading, Pennsylvania; that the property was known as a summer hotel, containing 219 rooms, and with accommodations for from 300 to 350 people.
It is not suggested that the loss is not an honest one, and the validity of the verdict depends upon the construction to be put upon the policy, under the evidence, by the court below. All instruments and agreements are to be construed so as to give effect to the whole, or as large a portion as possible, of the instrument or agreement, and when a court of law is construing an instrument, it is legitimate if two constructions are fairly possible to adopt the one which equity would favor: Washington, etc., Railroad Co. v. Ry. & Navigation Co., 160 U. S. 77. When words admit of two senses, that which gives effect to the design of the parties is preferred to that which destroys it: Add. on Contr. 45. Words, if of common use, are to be taken at their natural, plain, obvious and ordinary signification, but if technical words are used, they are to be used in a technical sense, unless a contrary intention clearly appears in either case from the context.
If the condition of the policy was broken, the contract of insurance became void. The provision that it should be void if the premises become vacant or unoccupied, and so remain for ten days, was superseded and modified by the permission granted in the policy that it might remain unoccupied during the winter months, upon the condition that when so unoccu
With all the facts presumed to be within the knowledge of both the parties when the policy was written, the closing of the hotel for summer boarders was contemplated by them, and, for the safeguarding of the premises, it was provided in the interests of both the parties, that a competent person should be in charge. In addition to a competent person being in charge of the building, the building itself was in fact occupied by the competent person and his family, and the words “winter months” were reasonably taken as opposed to the months of the season during which the hotel was open fqr customers. The one season referred in its broadest sense to the time when the hotel was closed to its patrons, and taking the “ten day” clause and the “unoccupied” clause together it is but reasonable to hold that the premium rate was ascertained in the light of the facts within the knowledge of the parties. The object of a
Conditions providing for forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced, and they are enforced only when there is the clearest evidence that that was what was meant by the stipulation of the parties; there must be no cast of management or trickery to entrap the party into a forfeiture: Helme v. Insurance Company, 61 Pa. 107; Louck v. Insurance Company, 176 Pa. 638. The burden rested on the defendant to show, not merely that the building was unoccupied at the time of the fire, but that it was unoccupied at a time which was contemplated by the qualification, and that a competent watchman was not in charge when so unoccupied. The presumption is that the plaintiff did not violate any of the conditions of the policy, and the burden rests on the defendant to show by evidence a violation of that condition, taking that condition as a whole, with all its stipulations and qualifications.
On the trial the counsel for defendant accepted the term “summer hotel” in the same sense that it was used by the plaintiff, and considered it of importance to have it in evidence» In referring to the purpose of his cross-examination of the plaintiff he stated: “He described this as a summer hotel, and under the terms of the policy it becomes important, and for that reason the term was carefully used to get it in. Having got it in — improperly, I think — I am entitled to cross-examine him
The word “season” in a contract employing plaintiff to purchase and deliver corn during the coming season will be construed to be used in reference to the period within which it is customary to purchase corn at the place where plaintiff is employed, and it will be presumed that the meaning of the term was well known in such locality: Myers v. Walker, 24 Ill. 133, 134, 136.
The court in construing a contract for the services of an actor during a season, said that it was a question for the jury whether the term “season” was used to designate the customary theatrical season of thirty weeks: McIntosh v. Miner, 53 App. Div. 240 (65 N. Y. Supp. 735, 737).
The defendant presented the following point: The actual cash value of the property at the time any loss or damage occurs is equivalent to and means the market value of the property at the time the loss or damage occurred, which the court below refused. There is ample support to be found for the action of the court in Waynesboro Mutual Fire Insurance Company v. Creaton, 98 Pa. 451, and in Cummins v. Insurance Company, 192 Pa. 359, in which latter case the court below says, “Under the express terms of the contract, the insurers were only liable for the ‘actual cash value of the property’ at the date of the fire.” What was the cash value must be ascertained from the evidence; the price of oak and pine lumber and shingles at the date of the fire was by no means conclusive as to the cash value of the barn, but it was evidence bearing on the question; what weight it was entitled to would depend on the dimensions, quality and kind of timber in the barn as compared with the price of such timber at the time of its destruction. The weight of such testimony could only be properly determined after it was sifted by cross-examination. Nevertheless, it was evidence, whether of great or little weight, for the consideration of the jury, and the court committed no error in admitting it.
The assignments of error are overruled, and the judgment is affirmed.