United States Fire & Marine Insurance v. Kimberly

Brent, J., delivered the opinion of the Court. This action is brought upon a policy of insurance, issued on the 28th of March, 1867, by the United States Fire and Marine Insurance Company of Baltimore, to Kimberly Bros., by which the company agreed to insure them against loss and damage, to tiie amount of eight thousand dollars, “ on the ²³⁰ four-story briol: warehouse, situate on Wide Water street, near Church street, Norfolk, Va. First floor occupied by machinery, used for making barrels, with privilege of storing barrels on the premises, and other merchandise not more hazardous. Steam-boiler encased in brick about ten feet from building.” This portion of the policy was written, and upon it arises the principal question presented by this appeal.

The policy also contains the following clause: “In all applications for insurance of property, the applicant must furnish an accurate and just description of the same, viz: of what materials each building is constructed; whether occupied as a private dwelling or hoto otherwise; where situated; the^name of the present occupier; how situated with respect o other buildings. And in the insurance of goods, wares and merchandise, the place where the same are deposited to be described; also, a general description of such goods; and whether any manufactory is carried on in the premises; all of which is to be certified and attested in such manner as the nature of the case may admit. And if any person or persons shall insure his or their building or goods, and shall cause them to be described in the policy otherwise than they really are, so that the same be charged at a lower premium than would otherwise be demanded; or if such description be false or fraudulent, such insurance shall be void and of none effect.” The premises had been leased on the 1st of February, 1867, for two years, to the firm of Baird & Roper, and at the time of issuing the policy, were used for no other purpose than those described in the written part of it. Subsequently, small circular saws and a work bench wTere introduced in the second story for the purpose of making boxes, and had been used for that purpose in the season, which was spring, summer and early fall; but this description of work had ceased, and no boxes had been made for from two to four months before the fire.

The circular saw's and work-bench were left, however, in the building, and evidence wras offered, tending to show ²³¹ that the work was to be resumed at a future time. A lathe had also been put up, the day preceding the night of the fire, for the purpose of making broom-handles and brush-blocks, but had never been used. The appellants insist, that the written portion of the policy is a continuing warranty, and that it was broken by the introduction of the manufacture of boxes upon the premses, during the running of the insurance. There can be no doubt, from the apparent conflict of the authorities which have been cited, that it is sometimes very difficult to determine whether the stipulations in a policy are descriptive only, or are intended by the parties, that the premises should continue to be used in the manner designated and in no other.

But in the present case, we think the intention is very clear, and that the written portion of this policy is nothing more than a warranty in prcesenti,. The second clause of the policy, which we have quoted, requires the applicant for insurance to describe with accuracy the building to be insured— how occupied, the materials of which it is constructed, and where and how situated with respect to other buildings. If the description is untrue, so that a lower premium is charged than would otherwise be demanded, the policy is thereby rendered void. The use, to which this building was appropriated, that of manufacturing barrels, is among those excepted in the printed portion of the policy, and its statement was an essential part of the description to enable the insurers to fix the amount of premium to be paid for the risk.

Had it been omitted, the description would have been imperfect; and as that use was continued up to the time the fire occurred, no recovery for the loss could have been had upon the policy. The clause certainly requires a true and accurate description of the use and occupation of the property under the penalty of forfeiture, and if such description is not in the written portion, it, is no where to be found in any other part of the policy. Courts are not disposed to favor a warranty by construction, and if the terms used are fully satisfied ²³² as a description, they will not be extended to include a warranty, unless it is clearly expressed that such was the design and meaning of the parties. These views are sustained by authorities entitled to great consideration.

In the case of Blood vs. Howard Fire Ins. Co., 12 Cushing, 472 , the policy being upon a building “ of wood, two stories high, formerly used as a machine shop, all of which business is now stopped and shop fastened up, and only used for the purpose of the meeting of the band, during two evenings of the week, on the second floor,” it was held to be a description of the build- ' ing, and not a warranty of its future use or occupation. In the case of Smith, vs. Mechanics & Traders’ Ins. Co., 32 N. Y., 399 , the policy was upon a “two-story framed building, used for winding and coloring yarn, and for storage of spun yarn, with the machinery and fixtures in it,” it was held, as the terms of the clause were fully satisfied as a description, they would not be construed to be a continuing warranty of future .-use.

To the same effect are the'cases of O’Neil vs. Buffalo Fire Ins. Co., 3 Comst., 122; Billings vs. Tolland County Mutual Fire Ins. Co., 20 Conn., 139 ; Catlin vs. Springfield Ins. Co., 1 Sum., 435 , and Joyce vs. Maine