Johnston v. Niagara Fire Insurance, 118 N.C. 643 (1896)

Feb. 1896 · Supreme Court of North Carolina

118 N.C. 643

R. D. JOHNSTON v. NIAGARA FIRE INSURANCE COMPANY.

Action on Insurance Policy — Loss hy Fire — Construction of Policy — “ Patterns.”

1. Where there is a conflict between the written part of a policy of insurance and the printed part, the former will govern.

2. Where the written part of an insurance policy insured plaintiff’s “ stock of cloth, cassimeres, clothing, trimming’s and all other articles usual in a merchant tailor’s establishment,” and the printed part of the policy provided that “patterns” were not covered by the policy ; Held, in an action to recover for the destruction of plaintiff’s stock of cloths, &e., including a lot of “tailor’s patterns,” that no recovery can be had for the latter, they being not only not specially included but specially excluded.

Civil action, tried before Brown, J., and a jury, at December Special Term, 1895, of Forsyth Superior Court.

The action was to recover loss by lire. The policy of insurance introduced by plaintiff contained the following provisions :

“ This Company shall not be liable for loss to accounts, bills, currency, deeds, evidences of debt, money, notes or securities; nor, unless liability is specifically assumed hereon, for loss to awnings, bullion, casts, curiosities, drawings, dies, implements, jewels, manuscripts, medals, models, patterns, pictures, scientific apparatus, signs, store or office furniture or fixtures, sculpture, tools, or property held on storage or repair.”

The type-written description of property is as follows : “ On his stock of cloths, cassimeres, clothing, trimmings, and all other articles usual to a merchant tailor’s establishment, contained in the two-[story] brick and frame shingle-roof building occupied by assured and situated on the corner of Third and Liberty streets, Winston, N. 0.” Seventy-five per cent, co-insurance clause attached to policy.

The plaintiff claimed damages on his suitings $654, and on his trimmings $98.83, making a total on suitings and trimmings $652.83 ; and on patterns as follows:

481 coat patterns, @ $1.-... $481 00

30 overcoat patterns, @ $1.50.. 45 00

450 pants patterns,© 50 cents.„. 225 00

180 vest patterns, @ 50 cents. 90 00

Total amount of damages claimed lor patterns $841 00

The following was the testimony as to patterns:

“ Patterns are made after I take the measure. I then cut á pattern out of paper, called pattern paper, for the customer; then cut out the cloth and baste up suit, and if suit does not fit I alter the pattern to suit; aftei making the suit I mark customer’s name on the pattern and file it away. I had patterns for customers who buy my clothes. I cut them myself; did not buy them ; they were useful to me in making clothes for my regular business. All of them are destroyed. I have customers in Goldsboro and Wilson, and other places in Eastern'North Carolina. I came from that section. I worked about twenty hands and did all the cutting myself. I could not well get along without patterns.”

Upon cross-examination plaintiff testifies : “ I use these patterns for making clothes for other persons besides those for whom they were cut. Some of these patterns were eighteen years old. I do not know how many customers are dead for whom these patterns were cut. I keep no record ; there may be 350 dead; the patterns were worth something, even if they were dead. Styles change every year.”

'William Beard testified : “ Patterns are used in a mer-

chant tailor’s establishment’; all tailors usually keep patterns'; can’t well get along without them.”

The defendant introduced no testimony.

The issues and responses were as follows :

“ 1. Did the plaintiff comply on his part with the stipulations in the policy regarding the appraisement and arbitration ? Answer, ‘ Yes.’

“ 2. Did the plaintiff furnish the inventory required by the policy? Answer, ‘ Yes.’

“ 3. Did the defendant, through its agent, waive the stipulation as to inventory? Answer, ‘Yes.’

“ 4. What damages, if any, is plaintiff entitled to recover on account of loss under said policy ? Answer, ‘ Loss and damages on account of merchandise and goods, $752. Loss and damage on account of patterns, $360.’ ”

The plaintiff moved for a judgment on the verdict. His Honor gave judgment for the plaintiff for damages and loss on goods and merchandise, but refused to give judgment for loss on account of destruction of patterns. The jury having found the value of the patterns $360, and there being $2,500 insurance in all, and the defendant company having issued its policy for $2,000, the motion of plaintiff which was refused was for four-fifths of $360. The plaintiff excepted to the judge’s ruling and appealed.

Messrs. Watson c&~ Buxton and Jones <& Patterson, for plaintiff (appellant).

Messrs. Qlenn <& Manly, for defendant.

Clark, J.:

When there is a conflict between the written part of the policy and the printed part, as for instance if the “ tailor’s patterns ” had been named as insured, and the printed general exception had excluded any liability, as it does for “ patterns,” then the written part of the policy would govern. 1 May Insurance, Sec. 117, and numerous cases cited; Wood Fire Insurance, p. 153, note 3. Or if it were doubtful whether the “ patterns ” were embraced in the general exception, the doubt must be resolved in favor of the assured. 1 May, supra, Sec. 175, and cases cited. But, here, the propert) insured is described as the plaintiff’s “stock of cloth, cassimeres, clothing, trimmings and all other articles usual in a merchant tailor’s establishment.” “ Patterns ” are not named as being insured. They could only come with the words “ all other articles,” and when that construction is asked to be placed upon the contract, we find in another part of the contract an express stipulation that “patterns” are not to be construed as covered by that policy. It is not the case of a conflict between the'words of the written and printed parts of the policy, nor is it the case of a doubtful exception, but upon the face of the policy “ patterns ” are not specially included by name, and they ?ire specially agreed to be excluded.

No Error.