Dyer v. Royal Insurance Co.

Hammond, J., delivered the opinion of the Court. Fire, ignited by an overheated combine, destroyed twenty-five acres of barley in a field on a farm owned by Frank P. Dyer, the appellant. Dyer had in force a policy of the Royal Insurance Company, Limited, which in item 18 provided insurance against loss by fire to “farm produce (excluding tobacco and growing crops), feed, seed and supplies while in said barns and outbuildings or on premises outside of buildings.” Some of the barns and outbuildings, also insured by the policy, were on one farm, others on another. Item 18 was the only item applicable to both farms and also was the only item subject to a co-insurance clause (90%).

Dyer contends that a matured crop, which has ceased to enjoy the assimilative processes of plant life, is no longer a growing crop, that it has become farm produce, and that the barley was in this category and, so, within the coverage and without the exception of item 18. The insurer says that the plain intent of the policy is to except unharvested or unsevered crops from coverage. The issue was presented below by a demurrer to a particularized declaration, which revealed the terms of the policy sued on. The demurrer was sustained and judgment entered for the insurer for costs after Dyer failed to amend.

Dyer points out that the term “growing crops” has been variously interpreted by the courts in deciding whether a crop ¹⁰⁷ is realty or personalty and whether or not it is subject to execution or attachment, the result often being compelled by the particular statute involved. From this contrariety, he argues that the use of the phrase makes the policy ambiguous and therefore to be construed in favor of the insured, relying on Hancock Mutual Life Insurance Co. v. Plummer, 181 Md. 140, 142 , and Schloss v. Metropolitan Life Ins. Co., 177 Md. 191 . We accept as controlling the rule that the intention of the insured and the insurer is to be ascertained if reasonably possible from the policy as a whole, and given effect.

Landwehr v. Continental Life Ins. Co., 159 Md. 207, 210-211 ; New England Mutual Life Ins. Co. v. Hurst, 174 Md. 596, 603 ; Hankins v. Public Service Mutual Ins. Co., 192 Md. 68, 84 .

We have concluded that the intention of the parties was that unharvested crops were not insured. Item 18 insures “farm produce”, which connotes growths or increases which the farm or its animals have yielded—those which have reached marketable or usable condition. Youngquist v. City of Chicago (Ill.), 90 N. E. 2d 205, 208 ; Keeney v. Beasman, 169 Md. 582, 587 . Crops, including barley, have not been yielded by the land and are not marketable or usable until severed.

The policy sets off produce, which is personalty and which was insured, against growing crops, which at common law and in Maryland are realty, and which were not insured. In Wootton v. White, 90 Md. 64, 71 , this Court declared the law of Maryland to be that “before the crop has matured and been actually severed from the soil” it continues to be realty. (Italics supplied.) The decision is in accord with those of other courts. See Tripp v. Hasceig, 20 Mich. 254, 260 (“It is true that the authorities in alluding to this subject very generally use the words ‘growing’ crops, as those embraced by a conveyance of the land, but this expression appears to have been commonly employed to distinguish crops still attached to the ground, rather than to mark any distinction between the ‘ripe and unripe’ crops”) ; and Hartshorne v. Ingels (Okla.), 101 P. 1045 , and cases cited in each.

Various consequences that would, or