GtmTHER tI. LIVERPOOL & LONDON & GLOBE INS. CO.
501
GUNTHER
et al.
fl. LIVERPOOL
&
LONDON
GLOBE INS. CO.
(Oircuit Oourt, E. D. New ,f01'k. March 17, 1888.) INSURANCE-CONDITIONS OF POLIcy-WHAT CONSTITUTES BREACH.
A policy of insurance containing a clause that kerosene shall not be stored on the premises insured, excepting to use for lights, if the same be drawn and the lamps filled by daylight, to which is attached two riders, bestowing the privilege of keeping not exceeding five barrels of such kerosene, and using it for lights on such premises, provided the lamps are trimmed and filled by daylight, is avoided by drawing kerosene by lamplight to loan to a neighbor, causing an explosion by which the entire building was burned.
At Law. On motion for new trial. Action by Amelia A. Gunther, executrix, etc., and others against the Liverpool & London & Globe Insurance Company on a policy of insurance Issued by such company. C. Bainbridge Smith, for plaintiffs. William Allen Butler, for defendant. LACOMBE, J. When the testimony in this case waS closed, defendant .:noved for the direction ofa verdict. The court Was inclined to grant iluch motion on the ground that it appeared by uncontradicted evidence i.hat the cause of the fire was the drawing of kerosene by lamplight. Inasmuch, however, as much testimony had been introduced bearing on another defense, viz., the presence or use of gasoline or benzine on the premises, the motion was denied, with leave to renew after verdict as a motion for direction of judgment. All question as to the drawing of kerosene by lamplight was withdrawn from the jury; and upon plaintiffs' case, and the other defense, their verdict was for the plaintiffs. The deftmdant now moves for a new trial on the same ground as that urged when the case was closed; not making the motion reserved to it, for the nason that such motion is "not in consonance with federal practice," because a compulsory nonsuit is not permitted here, and its practical equivalent-the power to direct a verdict-does not exist after verdict rendered. Under the authorities it is no doubt true that the very same process by which a state judge nonsuits a plaintiff on the whole case on grounds oflaw, is called the" directing a verdict," when practiced by a federal judge. Oscanyan v. Arms Co., 103 U. S. 261. It would be mat-' ter of regret, however, if the federal courts should by sticking in the bark of mere verbal dialectics be unable, despite section 914, Rev. St., to avail themselves of a state practice so sensible, and efficient AS that of directing judgment of nonsuit upon reserved points of law after verdict. Shepherd v. Bishop, 6 Bing. 435; Downing v. Mann, 3 E. D. ,Smith, 36; l1l8Urance Co.v. Minard, 2 N. Y. 98; SheUington v. Howland, 53 N. Y.371. By the·refusal of the court, however, to charge his last five requests, and by the denial of his motion to direct a verdict in his favor, counsel for the defendant is entitled to apply for the relief he now· .asks. . nor a careful examination : Neither the plaintiffs' extended .of the authorities cited in his brief, ,hasalteredt4eopinion expressed on,;
REPQRTER.
the trial. The circumstances under which the fire originated were these: On Al18'lJst 15, 1879, to the BathPark,;i3:otel, situated about a mile distant, came to Walker, the proprietor and occupant of the insured premises, to borrow some kerosene oil. [There was considerable conflict of testimony as to whether it was kerosene or gasoline 'which they came to get; but the' jury has found that there was no oij:the 'premises. and this motion will therefore be determined upon the assumption that the oil on the insured premises was kerosene.] to, and they were referred by Walker to one of his who was directed to supply their need. With two common open wooden pails, which they had brought to carry the oil in, and accompanied by Schuchart, Walker's employe, carrying a lighted lantern, the Bath Park employes went to the "oil-room." In this room, which was generally under Schuchart's charge, there was a barrel of kerosene, a can, some old rubbish, and a stand on which lamps could be its floor a foot filled. It was under what was known as the or so below the level of the ground, apparently without a window, and entered by a narrow door. Schuchart first set his light-an ordinary stable lantern" with holes, ,in the top",:"""upon the door-sill, and began to draw: into the pails. 'J;'he first of these leaked; considerable oil was its contents were then poured into the second pail. About spilled); the lamp Wllll brought from the door-sill nearer to the barrell this and 'fthortly afterwards-only a few minutes after the party entered the ensued an explosion and conflagration by which the W'ere totally d/aStroyed. 'fhere was some conflict as to the precise time of explosion, but I¥l the testimony showed that it was about dus)t, darker in the oil-room than it ,was o1;ltsieie, and there is no dispute but that, the oil was not being drawn by daylight only. ' ,Is a loss ,so caused covered by the policy? It is undoubtedly true that written and riders, will prevail over the ordinary printed forms of and that, as the contract is an instrument prepared by theins,urar, all doubts or ambiguities are to be resolved against him. ' But the rules of interpretlltion, whioh are the headlights under whicbaUwritten sho1;lld be coustrued, are just as applicable tel contracts of .insurance as to ,any other agreemeuts,-the whole documlmt,must be considlilred, and it must be construed so as to give effect to the, intent of the parties as indicated by the languf!,ge employed. The, suit, which covered a summer hotel, used as a dwellingwiQterseasQll' was on onf! of the ordinary printed forms house as suqh, policies, U!:lually of policy ulled,p)' the do, many carefully q.rawniprovisions, paragraphed and numbered, restricting the operation of.the contract, and saving the company from claims.for lossarieing uncler circumstances which exposed them to some n9twilling to accept. One of these paargraphsi "11.'" ... ... Petroleum, rock, earth, COllI, kerosene, or carbOn oils ofatly' description, whethercrudeoI' refined; benziile,;berizo)e, naphtha, ...... " ... or any ()tbt:l, i¥tlamDia.l.Ile liquidarenoHo ,be''Stored, 'used, kept,or allowed OIl
GUN'rHER 11. LIVERPOOL & LONDON & GLOBE INS. CO.
503
-the above premises, temporarily or permanently, for sale or otherwise, un leas with written permission indorsed on this pOlicy, excepting the use of refined -coal, 01' other carbon oHfor lights, if the same is drawn, and the lamps filled, by daylight. Otherwise this polley shall be, null and void." This paragraph declares its meaning with no uncertain sound. First, it absolutelY'l>rt>hibits, except upon written permit, the "storing, using, keeping, or aJlowing" of kerosene and certain other oils on the premises. temporarily' or permanently, and for any purpose whatever, ("for we or .otherwise.") It' next makes an exception in favor of kerosene, but with ,clearly expreSsed restrictions: (a) The kerosene so kept is to be used for lights. It is not to be kept" for sale," or kept or used" otherwise," except 'forlights; and manifestly for lights on the insured premises. (b) The ker-oBene whieh might thus be kept" for lights" is,to ,be drawn by daylight. {c) The lam,psinwhichthe kerosene kept "forlighm" is be filled by daylight. (d) As to any other manipulation of kerosene which is necess,ary to its USe "for lights," the paragraph above quoted is silent. The next inqUiry is whether elsewhere 'in the contract there is -anythingsoihconsistent with the ,terms of this paragraph as to make the meariing of the conttactdoubtful even; for doubts will be resolved,agllinst the insurer. The general description of the property, viz.:'·The twO:story frame hQtel building, with one-story frame kitchen and two-story pavilion adjoining and communicating, situate on Gravesend Bay at Bath, L. l., [it is understobd the above property is to be occupied by a family when not in use as an hotel] "-iscertainly not ihconsistentwith,a provisipnrestricting the keeping and use of kerosene to the single purpoS6l of lighting the premises., In that respect the, case Itt bar dIffers from the Harper Chaes and the others cited, where the ordinary use of such premises, as the policy described or the. survey. dis-closed, was inconsistent with the of the printed form. Nor <loes .the provision as to sp'ecial means of lighting, which was written in with the description of the ·premises, present any such inconsistency. 'l'he "privilege to use gasoline gas, gasometer, blower, and generator being under gl'ound about sixty feet from main building, in vaultj no heateIIl-ployed in process,"-does not import that the insured11luy not also t1se'kerosene for lighting the premises under the conditions of the poHcy, nor imply that he may keep or use it for any other purpose or in ariy way. It further appears that at the time of issuing the policy there was atiMhed wit a rider containing a customary privilege attached gerierally to policies; and expressed as follows: "Privileged to use kerosene oil for lightsj'Iamps to be filled and trimmed by daylight only." What effect bas this upon the provisions of paragraph 11, above quoted? In the first place it imposes an additional restriction upon the insured, for it forbids the "trimming" of lamps except by daylight. Paragluph 11, by its silence, permitted trimming-an operation not wholly free from conducted by artificial light-at anytime. The rid\'!r is thus susceptible of intelligent interpretation, without finding its' sole meaning in the endeavor to dispense altogether with the kerosene clau3e
FEDERAL BEFOBTER.
consider the whole contract, the meaning of this rider is to be determined only after its terms ll.re collated with those of paragraph 11, above ,When this is done, it will be at once seen that there is nothing in it which: will warrant the contention that kerosen may be kept "forl sale," or kept or used" otherwise" than for lighting the premises. These buildhigs certainly could not be used as a store-house from which might be obtained the oil necel"sary to light some other premises, even if those other premises were by the The lights in which the kerosene,-whi.ch the assuredwas thus authorized to keep,-wall to be burned, were to be that kerosene by daylight only. The rider is silent as to drawing! ,The sounder interpretation would seem to be that, as t(} original form, being unmodified by any inconsistency in the rider, should control; bu t even if the effect of silence in th e rider on that subject is to make tQe .whole contract silent as to the time of drawing under the privilege, then the utmost that can be claimed for the privilege given to the assured under the rider and contract is "You shall not," snys the insurer, "keep or use kerosene oil for sale, or for any ot,her except that of lighting the premises. As to the oil which you thus use for lighting, you must not pouritinto your lamps except by but we do not care when you draw the kerosene which we th\1s allow you to fill your lamps with." In view of the testimony this case, such a clause would probably have afforded abundant protection to the insurer. lithe lamps were not to be, filled except by dayl1ght, one would be after dark to draw oil, which could not be poured into them till the next morning. Alid' no one who was drawing oilwitbwhich to fill the lamps of that hotel would be likely to draw it in an open wooden pail, or otherwise than into a can such as might be thereafteJ;' cqnveniently used as an instrument for filling the lamps. The expert testimony shows that such a mode of drawing would be quite safe, and that it is only the agitation and exposure of a broad surface of the liquid which renders the presence of a light dangerous. The kerosene oil which took fire in this case, however, was being drawn for n(} such purpose; and. the language oi the rider cannot be stretched so far as to cover a. loss caused as this was, by operations not allowed by the policy. , ' Finally, plaintiffs sought to sustain their case on the terms of another rider, written on the margin of the policy, at the close of the season of 1878,\V.hen the assured decided to give up lighting any part of the premises with gasoline. It reads as follows: "Privileged to keep not exceeding five barrels qf oil on said premises." There is nothing in this clause, however, at all with the restrictions as to drawing which the policy contains. Nor does it at all import a keeping for any purpose other than that already provided for, viz., the lighting of the. premises. It merely provides how much kerosene may b& kept under the gem'ral license to keep, implied in the kerGsene clause and'the rider. It is not concerned either with the uses pr manipulation orthe oil so kept. The clause and both riders stand perfectly together.
oftl1e policy. In view of the rule of construction which requires us to
no
· BROO:KS 11. CARTEB.
505
The motion should be granted i and if, under the federal practice, a judgment cannot now be directed for the defendant on the point reserved, a new trial will be ordered.
BROOKS 11.
CARTER et aZ.
(Oircuit Oourt, 8. D. Georgia. March 21,1888.) AssAULT AND BATTERY-CIVIL ACTION-PLEA
m MITIGATION OB' DAMAGE8. In an action of assault and battery defendl\nt pleaded in mitigation of damages that plaintiff had promulgated a slander upon defendant's sister, and that after getting plaintiff in his power, and giving him ample opportunity to clear himself by naming the originator of the slander. which plaintiff failed to do, defendant thereupon horsewhipped him. Hetd. that such a plea is not good upon demurrer. the facts alleged not amounting to a justification.
At Law. Damages for assault and battery. Demurrer to plea. S. A. Ried, Casey J. Thornton, and Hardeman &: Davis, for plaintiff. Dupont. Guerry, for defendants. SPEER, J. This action was brought against the aetendants for assault and battery. The allegations of the plaintiff were that the defendant Barnum induced the plaintiff to call with him on one Searles. Complainant consented to go,and, when the carriage-shop of Searles was reached, the plaintiff was surrounded by the four defendants, three of whom threatened him with weapons, Barnum compelled him to pUll off his coat, and cruelly whipped him with a buggy whip. The plea of Barnum averred that on the day of the assault he, Barnum, came to town, and received a notefroIl1 one Everett stating that the plaintiff had ,?romulgated a slander upon his (Barnum's) sister. Barnum went immediately to see the plaintiff, and requested him to go with him to .searles' shop, whereupon the plaintiff went. When Searles and the plaintiff were confronted at the shop, the plaintiff charged that Searles had made the defamatory remarks. Searles denied it, and asserted that the plaintiff had made them. The plea states that the plaintiff thereupon admitted that he had in fact made the statement. The defendant then demanded of the plaintiff his "author," and plaintiff failed to give any author. By this the pleader meant, the author or originator of the slander. Defendant then told plaintiff that he would give him five minutes in which to give the author, but in fact he gave him .a quarter of an hour, and then told him he would give him five minutes more, if he desired it, and plaintiff replied, "it was not any use, if he was going to whip him, to whip,"-upon which the punishment was then inflicted. The defendant also states that he offered to go with plaintiff anywhere he desired to go, and to allow him to bring any friends he desired, when plaintiff declined both offers. By this it is presumed that the pleader meant that the· defendant offered to go out