President of the Maryland Fire Insurance v. Whiteford

Stewart, J., delivered the opinion of the Court. The party insured in this case, according to the terms of their policy, were not to keep in the buildings occupied by them, any articles, goods, or merchandise denominated hazardous, or extra or specially hazardous, in the conditions of insurance annexed to the policy, except as provided in the policy, or thereafter agreed to by the insurers in writing upon the policy. The original contract between the parties was modified by the endorsement upon the policy of the 24th November, 1865, specially referring to the article'described as “benzine.” This endorsement is in the following language: “ Permission given to keep one barrel of benzine or turpentine in tin cans, and one half-barrel of varnish, for use in No. 9 Commerce street.” As we comprehend the import of this endorsement, the quantity mentioned of benzine was authorized to be used on the premises, and unquestionably the insured had the permission to keep one barrel of benzine in tin cans upon the property, without incurring risk .of forfeiture of any of their rights under the policy of insurance. ²²⁵ A fair and reasonable construction must be given to the endorsement, so far as the intention of the parties can he deduced from the terms employed. Policies of insurance, like other contracts, should have such practical and ordinary interpretation, as to carry into effect the obvious understanding of the parties concerned in them.

This endorsement is not a warranty, but a permission given by the insurers, and to be substantially complied with on the part of the insured, to enable them to claim the benefit of the privilege. Judging of this endorsement by the rules of ordinary construction, we think there can be no doubt of the real meaning and purpose of the parties to allow the quantity of one barrel of benzine to be kept for use on the premises, but for better security against fire, from the dangerous character of the article, the benzine was required to be kept, not in the wooden barrel, but in a suitable metallic vessel, either in tin cans, or in one tin can, equally safe and proper, and better calculated than the wooden vessel to prevent accident from its use. It was proven at the trial that benzine is the product from the distillation of coal oil or petroleum, the most volatile of which is called gasoline; that benzine is inflammable and explosive when in contact with the atmosphere, and vaporizes from agitation. According to the testimony of those familiar with its character and properties, the keeping of benzine in one tin can, large enough to hold the quantity of a barrel, or less amount, is quite as safe, if not more so, than to keep it in tin cans.

There was, therefore, a substantial compliance with the provisions of the endorsement, in keeping the quantity specified in one tin can. If there could be any rational doubt of this being the purport of the language, apposite analogy will fortify the construction we put upon the endorsement. ²²⁶ A representation is substantially complied with by the adoption of precautions which, if not those exactly stated in the application, may be such as tend to accomplish the same purpose, and considered equally efficacious ; for example, when it is stated that ashes are taken up in iron hods, it would be a substantial compliance if brass or copper were substituted. So when it is represented that casks of water, with buckets, are kept in each story, if a reservoir be placed above, with pipes to convey water to each story, and found by skilful and experienced persons, to be equally efficacious, it would be a substantial compliance. Angell on Ins., 195; referring to Houghton vs. Manufacturers’ Ins.

Co., 8 Metcalf, (Mass.,) 122. Under the permission to keep the benzine for use, to the extent specified, the insured were not restricted in their right to procure it in any usual way; and the purchase or procuring of a barrel of it from merchants or other persons having it, and its introduction and transfer from the wooden barrel to the tin can, were allowed to' the insured by every fair intendment. If it had been the intention of the parties to make the permission more restrictive, proper terms to that effect should have been employed. We perceive no valid objection to the prayer of the appellee, insisting that