Opinion
March Term, 1858
A. Thompson, for the appellant.
William M. Evarts, for the respondents.
The judgment of the Supreme Court, I think, should be affirmed.
First. The exclusion of the use of camphene in the building where insurance is effected has reference to its use in lighting the premises. This is evident, I think, from the connection in which it is found with other articles used alone for that purpose. I know of no other use to which spirit gas and burning fluid are applicable except for the purpose of lighting buildings. And that is the ordinary and more general use to which camphene itself is applied. The three articles for lighting buildings being thus placed together in the prohibition, in connection with the consideration that such use is extremely hazardous, raises a strong presumption that its use for lighting alone was designed to be prohibited in this clause.
But, taken in connection with the other provisions of the policy, the presumption becomes conclusive. In the class of special rates we find enumerated camphene on sale, without any such special prohibition; and in the same class is found printers of books and job printers, the very articles which the policy by its terms covers. Its use for cleaning rollers is clearly no more hazardous than keeping it for sale. I am satisfied, therefore, that it was not the mere presence of the article which was designed to be prohibited by this special clause in the policy, but its common though hazardous use for lighting buildings.
Second. But if that clause should be deemed to include any and every use of camphene, it would not avoid the policy. The insurance in this case is upon the stock in trade used in the business of printers of books and book-binders, and covers all such articles as are necessarily and ordinarily used in such business. The term "stock in trade" in a specified business, when used as matter of description in a policy of insurance, "includes, besides materials, everything necessary for carrying on that business." (1 Phil. Ins., § 489.) They are just as clearly, therefore, embraced in the policy as if each article thus necessarily used was enumerated at length. (2 Hall, 589; Wall v. Howard Ins. Co., 14 Barb., 383, affirmed in this court December, 1854.) And the underwriters must be deemed to have been acquainted with the business, and with the materials ordinarily and necessarily used by the trade in prosecuting it. In issuing the policy they must be deemed to have intended to include all such materials in the risk. In construing the policy, therefore, it is to be treated as if the article of camphene for the use to which it was in fact applied, had been enumerated with the other articles covered by the policy. Thus considered, the rulings at the circuit were clearly right.
A policy of insurance, like any other contract, should be construed so as to give it effect rather than to make it void. The company have received a premium adequate, it is presumed, to the risk which they have taken, and hence nothing but the most stern legal necessity should constrain the court to give it a construction which would nullify it and render it a mere deception instead of the protection which the parties to it designed.
It is a well settled point that the written part of a policy shall always prevail over the printed part, in cases of repugnancy. (2 Hall, 622.) The printed forms are very general in their terms. The prohibitions inserted therein are more particularly applicable to the ordinary and more common policies of insurance upon non-hazardous property, for the purpose of protecting the insurers against any increased hazard in consequence of a change of business or the use of any material more hazardous than that insured against. In much the greater portion of insurances there would be no repugnancy between the written and printed part of the policy, and effect, in such cases, should undoubtedly be given to every part of the instrument. Still the substance of the contract is in the written part of the policy; and when the insurance is upon hazardous or extra hazardous goods or trades, or upon those specified in the memorandum of special rates, these printed portions are not applicable or at most only in a limited degree. Even in such case some effect may be given to these printed prohibitions. They would be held probably to prohibit a change of business from the one designated to another not designated, although the latter should be no more hazardous. In such cases they would not be entirely uselesss.
But when the insurance is directly upon the stock in trade as for example in the business of manufacturing and sale of camphene, to hold that a general printed prohibition (contained in every policy of insurance) against keeping or using it, unless permission be specially given and indorsed upon the policy, would have the effect to nullify its direct and positive stipulations, would be preposterous. Indeed, presented in this form, no one would contend for such a proposition. And still that is substantially the point presented in this case. For if I am right in the proposition that if the article was necessarily and ordinarily used in the business it is included in the term "stock" used in the policy; it is as plainly within the risks assumed by the defendants as if written in at length. Upon the whole I think the rulings at the circuit were correct and the judgment must be affirmed.
In Lamatt v. The Hadson River Fire Insurance Company, decided at this term, the action being upon a policy containing precisely the same provisions in respect to the use of camphene, the following opinion was delivered, which sufficiently states the facts and question involved:
DENIO, J. The plaintiff, against the defendant's objection to its competency, gave evidence tending to show that there was an agreement between the plaintiff and the defendant's agent, cotemporaneous with the execution of the policy, that the plaintiff might use camphene as a light in the store containing the injured goods, and that a portion of the premium exacted and paid was for the privilege of such use of camphene.
I am unable to take this case out of the rule which excludes parol evidence to vary the terms of a contract in writing. If the use of camphene had simply been prohibited by the policy, the plaintiff would not have been permitted to show that the prohibition had been waived at the time of the execution of the instrument. The case is stronger in reason, though perhaps not in law, where there is found in the written contract a statement that the evidence of an agreement for the use of camphene shall be in writing. The plaintiff sought to guard against the effect of an alleged verbal agreement by stipulating, in effect, that it should be of no avail. A stronger case for the application of the rule could scarcely be stated.
It is argued that the evidence of the permission to use camphene is, in fact, indorsed. There is an entry on the back of the policy as follows: "Amount insured, $2,000. Premium, $25." This amount of premium it is said, and I believe correctly, exceeds the regular premium, upon such risks as this appears to be, by sufficient to cover the price of the use of camphene. But it is not stated in the entry that the increased sum was paid for the privilege of using camphene. It may just as probably, so far as the entry is concerned, have been for some extra hazard referred to in the list of special rates. To protect the assured the indorsement must state that the amount of premium noted is for the privilege of using camphene; or it must in some manner appear in writing that such privilege had been secured to him.
I am of opinion that the judgment [which was for the plaintiff] should be reversed, and that there should be a new trial.
All the judges concurring,
Judgment reversed and new trial ordered.
All the judges concurring,
Judgment affirmed.