Heath v. Franklin Insurance

To what building does this policy attach ? Is it the most easterly house, situate at the corner of Charles Street and Western Avenue, or the adjoining westerly house, or both, or is the description of the building proposed to be insured, as it appears in the policy, so uncertain in its appli cation, that for that cause the policy must fail altogether ?

*261In the policy itself, and on the face of it, there is nothing to create any ambiguity, as to the description of the building. But, upon proof of the circumstances, and the actual state of things, in reference-to the two buildings, the ambiguity arises.

The plaintiff, however, insists, that, upon a proper reading of the description in the policy, it may well be taken to apply to the western building; and this would very clearly be so, if the words, “situate at the comer of Charles Street and the Western Avenue,” are to be taken as referring to “ the adjoining building ” and not to the building insured.

But this, we think, cannot be maintained. The case does not seem to be one, in which any grammatical rule, referring the words “situate,” &.C., to the next antecedent, can properly be applied. Such a rule is not one of general application, especially to cases like the present, where the words are used in a continuous description of various distinct and independent circumstances, applicable to the building insured, and which, from their very nature, are distinct and independent descriptions. The object of each and all these different descriptions is to set forth fully all the essential circumstances relating to the property insured. Among these circumstances the most prominent is the location of the building to be insured. We might well expect, as a part of the description, contained in the policy, a statement of the location of the particular building, which was the subject of it; and, it is much more natural and probable, that the location of the building to be insured should be given, than the location of a building not insured, and which was only introduced incidentally, to disclose the manner of the connection of the building insured with an adjacent building.

- We cannot doubt that a proper reading of the policy requires, that the words “ situate at the corner of Charles Street and the Western Avenue ” should be applied to the building insured, rather than to the adjoining building.

Having settled this point, we are then to look at the whole description, and see whether it can, upon any sound principia, apply to the western building. And in reference to this in*262quiry, it will be seen, that the recital in the policy, as we have just held, varies from the description which would embrace the western house, in the most material particular, namely, the house insured is described as situate at the corner of Charles Street and the Western Avenue, but that is the location of the eastern house, and not of the western. That part of the description, therefore, being inappropriate, the application of the policy to the western house must be shown by other parts of the same description.

We do not doubt the propriety of rejecting a particular description, which is clearly false, in order to give effect to other descriptive words, when such words are sufficient to define the object intended to be described. In such a case, the false description may be rejected as surplusage. But the difficulty here is, that we are called upon to reject that particular part of the description, which is the most leading. Again, if we reject this description, we have no other elements of description, sufficient to embrace any particular house as within the policy. Striking out the words “ situate at the corner of Charles Street and the Western Avenue,” we have no locality and no particular house insured. The matter stands thus as to the western house. Rejecting this particular in the description as false, and giving full force and effect to all the other parts of it, the description is then so substantially defective, that it cannot be held to apply to the particular house, which the plaintiff insists was insured. This view of the case precludes the plaintiff from recovering damages, for any loss which he may have sustained in the destruction of the western house by fire.

It was suggested, that the policy might be construed to embrace the whole block, that is to say, the two buddings, and thus avoid the difficulty in the variance of the description as to situation. But we think that this cannot have been the true intention of the policy; the description clearly referring to one building, and that a building “ connected by doors with the adjoining building.”

The next inquiry is, whether this policy müst totally fail *263for uncertainty in the description, or whether it may be held to attach to the eastern building, which, it was in evidence, had sustained some small damage by the fire. The fact, that the parties intended to cause a policy to be made as to one of these two buildings, will hardly be doubted; and, having decided that the western house was not covered by the policy, it might seem to result as a matter of course, that the policy attached to the eastern house. But such is not necessarily the consequence, as the description may be equally uncertain as to both. In such case, the policy must wholly fail. But the fact, that the policy was intended for the one house or the other, may have some influence; and if there be not only a preponderance of evidence, resulting from the description and the actual state of things, in favor of one building rather than the other, but sufficient evidence, after rejecting the false description, to identify the particular building, we may well' conclude that such building is covered by the policy, and was designed to be so by the parties. In looking at the policy, with reference to its application to the eastern house, we find all the leading descriptions, and particularly that of location, to be directly applicable.

The only description, which is inapplicable, and which appears by the evidence not to be true, is the recital: “A cabinet maker’s shop is in the building.” This does not apply to the eastern house, and, if material, must of course be a fatal objection to the construction, which makes that house the subject of the policy. As before remarked, in reference to the description in the policy, as applicable to the western building, the rules of law fully authorize the rejection of any false description, if what remains be sufficient clearly to designate the object intended to be described. Now, in the present case, as to the eastern building, such will be the case, if the entire recital as to the cabinet maker’s shop be rejected. There will still remain all the elements essential to a definite description, the location of the building, and every circumstance necessary to its identification.

Such being the case, and the circumstances being strong *264to show that one of those two buildings was insured; and, for the reasons already stated, the western not being described in the policy; we are of opinion, that the recital, “A cabinet maker’s shop is in the building,” may'be rejected as erroneous; and that the policy will then attach to the eastern building.

The only other point, which, in this view of the case, is necessary to be considered, is the sufficiency of the notice of the loss and damage. The notice was in very general terms,—conveying no intelligence as to the amount of damage,—containing no statement of the particular circumstances connected with the cause of the loss, — and making no demand of any specific sum of money as an indemnity.

The sufficiency of this notice is not to be determined solely by reference to general principles applicable to other policies, but in part also upon the peculiar provisions of this policy, or the stipulations which it contains regulating this subject. The provisions relative to notice of loss are very general, and are wholly contained in the following clauses: “ And in case of any loss the same is to be paid without any deduction, in ninety days after proof thereof,”— “ And the assured agrees, that in case of any loss, or damage, the said company shall have the right to replace the articles lost or damaged with others of the same kind and equal goodness, at any time within ninety days after notice of the loss.” It would have been entirely competent for the company, to have required a distinct specification of the damages claimed by reason of the loss, or other precise and minute particulars, but they have not done so.

The first of these provisions is probably inartificial] y expressed to carry out the object of it, as it provides that payment shall be made in ninety days “ after proof” of the loss. This was probably copied from the specifications in marine policies, where certain preliminary proofs are required.

We think, considering the general terms in which notice is required by the provisions of the policy, and applying a principle of law, which is applicable in cases of a like char*265acter, that the notice may be regarded as sufficient. According to the principle of law referred to, when underwriters make no objection to a deficiency in the preliminary proofs, or to the notice given, but put their denial of liability upon other grounds, such conduct is a waiver of the objection of a defective notice. Vos v. Robinson, 9 Johns. 192. The principle of waiver is also recognized in the case of the Ætna Ins. Co. v. Tyler, 16 Wend. 401, where the court say: “ The law is well settled in this state, that if there is a formal defect in the preliminary proofs required by the policy, and which could probably have been supplied, had any objection been made by the underwriters to the payment of the loss, on that ground; if the insurers do not call for the document, or make an objection on the ground of its imperfection, but put their refusal to pay distinctly on some other ground, the production of such further preliminary proof will be considered as waived ; ” good faith on the part of the underwriters requiring, in such a case, that if they mean to insist upon a mere formal defect of this kind in the preliminary proofs, they should apprize the insurer that they consider the same defective.

Cases of fire insurance seem, less than marine, to require particularity in the notice of loss. Losses by fire more usually fall under the inspection of the insurers’ agents; and a general notice will be sufficient to enable the insurers seasonably to acquire a more minute knowledge of the loss, if such Knowledge be desirable.

We put the decision, in the present case, however, upon the provisions of this policy, and the legal principle properly applicable to it, that no objection being taken to the form of the notice, and no further or more particular information being requested by the insurers, no objection can now be taken, upon that ground, to the plaintiff’s right to recover.

The ruling, at the trial, on the first point, being now held erroneous, the verdict must be set aside, and a new trial granted.

*266The case was again tried at the March term, 1846, upon substantially the same facts, before Wilde, J., who ruled, in conformity with the foregoing opinion, that the policy applied only to the easterly building. The plaintiff then introduced evidence, to show that the breakfast room and kitchen in the spur or L communicated with the easterly building by doors; and, upon that and other evidence in the case, contended that the spur formed a part of the eastern structure. But the judge ruled otherwise, and a verdict was taken accordingly for the injury to the easterly building only. The case being reserved for the consideration of the whole court, the rulings were confirmed, and judgment entered on the verdict, at the present term.