Opinion
April Term, 1897.
Walter S. Hubbell, for the appellant.
Patrick McIntyre, for the respondent.
But three questions relating to the right of recovery are involved in this litigation: (1) Whether the plaintiff has unreasonably refused to have the amount of damages determined by arbitration and can, under the provision quoted from the policy, maintain this action. (2) Whether the policy covers machinery, tools and implements carried in stock for sale. (3) Whether the damages awarded by the referee are excessive.
Under the policy and the arbitration agreement the arbitrators had no power to construe the policy and determine what property was and what property was not insured; but it was their duty to ascertain the damages done by the destruction and injury of all the property of the kinds or classes described in the policy and specify that which was in use and that which was kept for sale, stating separately the damages sustained on each class of property. The construction of the policy, in case the parties could not agree, was for the courts and not for the arbitrators, unless the parties had chosen by agreement to submit that question to them, which was not done.
William A. Wilson, the appraiser selected by the plaintiff, testified: "I claimed that the whole machinery was covered by insurance; by the whole machinery I mean the machinery that was there and sold, as well as that used by him; that was the disagreement between Mr. Berry and me." He also testified, in effect, that the plaintiff knew and approved of the position he took.
Edward R. Berry, the appraiser selected by the corporation, testified: "He (Wilson) said he wouldn't go ahead with it unless we took the stock of machinery all under one item; that Mr. Michel and his attorney claimed the policy covered all there was in there." This was not disputed. He further testified: "I insisted in having two schedules made, one of the stock and one of the machinery." But he also testified that he supposed it was a part of his duty to construe the policy.
January 21, 1896, the defendant's general agent wrote the plaintiff that Mr. Edward R. Berry "is now prepared to go ahead with the appraisal of loss to your office in furniture, patterns, tools and machinery used in your business."
The referee did not find whether William A. Wilson, under the advice of the plaintiff or of his attorney, insisted on having all the property appraised without specifying that which was for sale and that which was in use. If Wilson, by the direction of the plaintiff or of his counsel, refused to go on with the arbitration unless all the property were appraised, including that in use and that for sale, without specifying the damage on each class of property, the refusal was unreasonable and sufficient to defeat an action on this policy.
But this question not having been passed on by the referee, the question whether the plaintiff unreasonably failed to comply with the arbitration clause must be spelled out from the evidence. Considering all the evidence bearing on this question, and in the absence of an express finding, it cannot be held on this appeal that the action was brought in violation of the arbitration clause. The defendant was guilty of delay in attempting to procure a second arbitration, and, considering this delay, it was not unreasonable for the plaintiff to take the position that he would not enter into a second arbitration unless it was stipulated that the payment of his damages should not be delayed for sixty days after the determination of new appraisers. I am of the opinion that the evidence relating to the first question involved does not require the court to hold, as a matter of law, that this action cannot be maintained.
Does the policy cover machinery, tools and implements carried in stock for sale?
The words "used in his business as a machinist" qualify and control all the preceding words in the same sentence. A "machinist" is a constructor of machines, or one skilled in their construction. (Worcester Dict.; Century Dict.) The word is not descriptive of a dealer in machinery and implements. "Shafting" and "belting" are specific words descriptive of machinery in use; so are "iron working lathes," "planers" and "upright drills." "Milling machinery," or a milling machine, is a machine used to cut metals. The plaintiff testified that he had such a machine in use. Every word preceding the words "and on other" accurately describes specific machinery in use in any fairly well-equipped machine shop, and are not apt words, or such as are generally used in policies to describe a stock of goods kept for sale. The word "other" means any machinery not different in kind from that before specified and kept in the building not for a different purpose, but for the same purpose — "used in his business as a machinist." "Other" is a word of addition which is very often used in fire insurance policies to cover articles of the same kind and not particularly described by the preceding words. In a statute or in a contract where general words follow specific words, the general words are not construed to mean things of a different kind from those described by the specific words, but they denote things of the same kind and for the same use. Ejusdem generis. If it be urged that there was property kept for sale corresponding with the specific words, the answer is that they were not "used in his business as a machinist."
Thus far I have construed the language used without reference to extraneous circumstances. It is not alleged that there is any mistake in the policy. October 29, 1888, the Rochester German Insurance Company issued a policy (Exhibit S) for the same amount, for one year, and the clause relating to machinery was precisely like the clause in question, except that the word "other" was not used. October 28, 1889, the same company issued a second policy (Exhibit T), using the same words as in the first. October 29, 1890 (Exhibit E), and October 28, 1891 (Exhibit F), the same company insured the same property for the same amount, and in both policies the words "and all other" are used, the description being the same except that the word "all" is not used in the policy in suit. March 11, 1892, the Ætna Insurance Company insured the plaintiff (Exhibit M) for $3,000 on property described as follows:
"$1,000 on his stock, manufactured and in process, and materials and supplies used in his business, to include work finished and in process.
"1,700 on his machinery, shafting, belting, iron-working lathes, planes, upright drills, milling machinery, tools and implements used in his business as machinist.
"300 on wood and metal patterns. All contained in the four-story and basement brick building situate Nos. 129 131 west side of North Water street, Rochester, N Y
"Other insurance permitted.
"And renewed to and include March 11th, 1895."
It will be observed that the first clause last quoted covers manufactured stock, materials and supplies, and the second clause covers machinery and implements "used in his business as machinist."
The plaintiff testified that he had in use machinery answering the description in the policy, and also that he had some machinery in stock corresponding with the description in the policy. Upon the face of the policy, read in the light of the surrounding circumstances, I think that only the machinery in use is covered by the clause under consideration.
The language used in the policy, read by itself or in the light of the surrounding circumstances, is not ambiguous, but is plain, and admits of but one meaning, which is, that only machinery "used in his business as machinist" is covered. By no other construction can every word in the clause be given a meaning.
Exhibit E is a policy issued October 29, 1890, by the Rochester German Insurance Company to the plaintiff. Frederick Zimmer was the agent of that company and was also the agent who issued the policy in suit. The plaintiff, over the defendant's objection and exception, was permitted to testify that he pointed out to Zimmer his machinery "standing in stock" as part of the property to be covered by the policy to be issued by the Rochester German Insurance Company. This was error. Zimmer was not then acting as the agent of this defendant, but for a different corporation, and it was five years before the policy in suit was issued, and it does not appear that Zimmer was then an agent for the defendant. What occurred at that interview was not admissible as against this defendant.
It is to be regretted that the referee did not determine the amount of damages on each class of property so that the judgment could be modified, but, as the case stands, if these views prevail, the judgment must be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment reversed and a new trial ordered, with costs to abide the event.