Storer v. Elliot Fire Insurance , 45 Me. 175 ( 1858 )

The opinion of the Court was drawn up by

Goodenow, J.

This is an action on an-insurance policy, dated April 30, 1856. The writ bears date Dec. 17, 1856. It was admitted that the fire took place June 24, 1856, and that the plaintiff sustained a loss thereby, to the amount of $4488,67, which sum, with interest thereon from July 26, 1856, the plaintiff is entitled to recover of defendants, if he is entitled to recover his whole loss from them, without contribution from other insurance companies.

The defendants offered, subject to objection, a policy of Howard Fire Insurance Company, dated Sept. 25, 1854; a policy of Springfield Fire and Marine Insurance Company, dated Sept. 13, 1853; and a policy of Hamden Insurance Company, dated Nov. 6, 1854, to the plaintiff; and also the application on which the policy in the office of the Springfield company was founded; and the application, dated April 28, 1856, on which the policy in suit was founded. It was admitted that these policies were renewed yearly, until the fire. The plaintiff was insured under defendants’ policy, “ $5000, on his stock of merchandize contained in the chambers of a four story brick and slated building, occupied by him and others, situate on the northerly side of Middle street, and extending through to Temple street, in Portland, Maine, as per application and plan, No. 6147, on file at this office, forming part of this policy and warranty on the part of the assured.”

The policy further provided that, “ other insurance (should be) permitted without notice, until requested.” And “that, in case there should bo any other insurance made as aforesaid, on the property hereby assured, whether prior or subsequent, the assured shall be entitled to recover on this policy no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon.”

The plaintiff was insured in the Howard Fire Insurance Company, $2000, “on his stock.of dry goods and fixtures of store, contained in a four story brick store, situate on Middle street in said Portland.”

He was also insured in the Hamden Fire Insurance Company, $2000, on his stock of merchandize, composed principally of dry goods and ready made clothing, contained in a four story brick building on the northerly side of Middle street.”

Also, in the Springfield Eire and Marine Insurance Company, “ $5000, on his stock of dry goods and fixtures contained in a four story brick store, situate on Middle street and on Temple. street, and being numbered 125, Mussey’s Row, so called, as described in a survey, No. 143, on file in this office,” which is a part of the policy.

The application states the insured property to be “ in a four story brick store, slate roof, situated on Middle street, in Portland.”

The plaintiff, being called by his counsel, testified that, at the times said three policies, in the Springfield, Howard and Hamden offices, were issued, he occupied part of a building known as the “ Mussey block,” on the north-westerly side of Middle street, in Portland; that L. D. Hanson & Co.’s store formed a part of said block; that their store was separated from the other part by a brick wall, from bottom to top, and that they occupied from cellar to attic, said store being arranged to be so occupied, with stairs inside communicating with the different stories, and there was no access to the chambers excepting through the room in the lower floor. This store was No. 19, on Middle street. The other part of said block was finished for two stores, on the ground floor, with basements under them, and the chambers over them were occupied as lawyers’ offices, and for other purposes. After going into a more minute description, he states that his store consisted of the ground floor, and basement under it. It had no connection with any other part of the building. It was known as No. 125. The chambers were numbered 123. At the times the insurance was effected in the Springfield, Howard and Hamden offices, he had no right in any other part of the building. The chambers were then occupied by other parties. That, in 1855, he went into the wholesale business, having been previously engaged in the retail trade; that, at different times during the year 1855, he hired these chambers in the building, two, at first, on the second floor, then the room in the third story — there was no connection between these chambers; they were hired at different times, and at different rents. The chamber in the third story was used as a storeroom for whole bales and packages of goods; there was no way of passing from his store to either of said chambers, without going into the street.

The plaintiff also testified, that the agents of the Hamden and Howard offices, and of the Springfield office, when they took the risks, examined the premises, and he pointed out to them the portion of the building occupied by him as his store, and wherein he wished insurance, and the premium was fixed upon such examination; that he did not have any intention of change of business, or of hiring these chambers at the time insurance was effected in these offices. After he had hired the three chambers, he applied to the agent of the three offices, before named, and obtained a separate insurance in the defendant company, of which the same person was also agent, and that he charged a higher premium, the risk being greater.

The third story chamber, where the goods were lost, was next to Temple street, which was narrow, and opposite were wooden buildings, and just above was a livery stable from which the fire took; that he hired this chamber after the last renewal of the other policies. At the time of the fire, the stock in the store No. 125, that is, the lower floor and basement, was between $25,000 and $30,000, and the loss there amounted to about $2,500.

It is contended, on the part of the defendants, that the three first policies, as well as the policy of the Elliot Company, covered the stock of the plaintiff in the chambers of the four story brick store, the only distinction being that the policy of the Elliot Company covered that in the chambers alone, while the other policies covered whatever he had in either or all the four stories. And, also, that there was no ambiguity in the descriptions in the policies.

Did the three policies, or either of them, introduced by the defendants, cover the merchandize in the chambers ? If they did not, it will become unnecessary to consider tbe second proposition of tbe defendants..

Taking into view tbe several descriptions contained in the four policies which have been introduced in evidence in this case, we find a latent ambiguity, which may be removed, and which, in our opinion, has been removed by parol testimony. The parol testimony introduced does not...vary or contradict the language of the policy on which this suit is founded. . ■ It only goes to show where the property was to be found, to which, the policy was .intended to apply. The building,, in which the goods were, may . be found without the aid of parol testimony. But it is found to contain other occupants beside the plaintiff, with different • entrances, and carrying on different kinds of business. Were the .policies intended to apply, to goods in the whole building ? The parol testimony shows that the plaintiff occupied, only a part of it, when the three first policies were issued. It shows the part he occupied when the last policy was issued, which was “ on his stock of merchandize, contained in the chambers of a four story brick and slated building,., occupied. by, .him. and others,” &c.

We are. of . opinion, that , the parol, testimony, offered was admissible, and;that the three first policies did- not, nor did either of them, cover the merchandize in the chambers or any part of it) and that, therefore, the plaintiff is entitled to recover, of, .thp defendants for„bis whole loss,, as before stated..

Defendants defaulted. Damages, $4488,67, . and interest on the same from July 26, 1856.

Tenney,"Ck J., Hathaway, May, and Davis, J. J., concurred.