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Kuh v. British America Assur. Co.

Supreme Court of New York, Appellate Division

January 8, 1909

KUH ET AL.
v.
BRITISH AMERICA ASSUR. CO.

Appeal from Special Term, New York County.

Action by Emanuel S. Kuh and others against the British America Assurance Company. A demurrer to the complaint was overruled ( 59 Misc. 589, 112 N.Y.Supp. 410), and defendant appeals. Reversed, and demurrer sustained, with leave to serve an amended complaint.

The printed part of a marine policy sets forth the risks insured against, and provided that no particular average should be paid unless amounting to 5 per cent. A typewritten rider stated the goods insured, and that the insurer would pay particular average if amounting to 3 per cent., each package to be separately insured, the original sworn weights to be taken as a basis of settlement, and insurer to pay for loss of weight, in excess of 1 per cent. on the entire shipment. Held, that the insurer was liable for damages amounting to 3 per cent. on each package, and, if there was loss of weight in excess of 1 per cent. on the entire shipment, the insurer was liable for that, whether the loss for any particular package were 3 per cent. or not, but the liability for the 1 per cent. loss was only for the particular risks insured against and was not absolute, irrespective of the cause of the loss. Judgment (1908) 112 N.Y.S. 410, 59 Misc.Rep. 589, reversed.

[114 N.Y.S. 269] Horace L. Cheyney, for appellant.

Stanley Holcomb Molleson, for respondents.

Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.

MCLAUGHLIN, J.

Appeal by the defendant from an interlocutory judgment overruling its demurrer to each of the first 52 causes of action alleged in the complaint. The same issue of law was presented in each case, and the record before us contains the first alleged cause of action only, the parties having stipulated that the decision upon the demurrer to this cause of action shall be final and binding as to the remaining 51.

The action is to recover upon an open policy of marine insurance issued by the defendant, covering shipments of lard, grease, tallow, and packing-house products. The first cause of action alleges the issuance of the policy, which is made a part of the complaint, and that by its terms the defendant agreed, as to each shipment insured thereunder, to pay for all loss of weight in excess of 1 per cent. of the entire shipment, irrespective of the cause of such loss; and that such a loss of weight was sustained by a shipment of tallow, covered by the policy, from New York to Marseille by the steamship " Madonna," the damage by reason of such excess loss of weight being $101.75. These are the only allegations of the complaint which it is necessary to consider on this appeal. The demurrer was upon the ground that the facts stated are not sufficient to constitute a cause of action. The defendant contends that it is liable only for loss resulting from the causes specified in the policy, and that, since it is not alleged that the loss in question was occasioned by one of these causes (the complaint containing no allegation whatever as to the cause of the loss), no cause of action is stated.

The question presented turns upon the construction of the policy. This consists of a printed form issued by the defendant, containing general provisions, upon the face of which is attached the printed form of the agents who issued the policy, and which is made a part thereof, and to the latter is attached a further typewritten sheet or rider, also made a part of the policy. In the general form of the policy it is stated that:

" Touching the adventures and perils which the said Insurance Company is contented to bear and take upon itself, they are of the Rivers, Seas, Bays, Sounds, Canals, Railroads, Fires and any and all the risks of Fire and Navigation and Transportation and all other perils or misfortunes that have or shall come to the hurt, detriment or damage of the said property or any part thereof" -excepting certain perils which are specified.

The printed form of the agents contains a somewhat similar provision, viz.:

" Touching the adventures and perils which the said assurers are contented to bear and take upon themselves in this voyage, they are of the seas, men- [114 N.Y.S. 270] of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of mark and countermark, reprisals, takings at sea, restraints and detainments of all kings, princes or people of what nation, condition or quality soever, barratry of the master and mariners, and all other perils, losses and misfortunes, that have or shall come to the hurt, detriment or damage of the said goods and merchandise, or any part thereof."

This form specifies in detail the subject and conditions of the insurance, and provides, among other things, that " no partial loss or particular average shall in any case be paid unless amounting to five per cent." Upon the typewritten rider are further details, and the following clause, which gives rise to the present controversy:

" Lard, greases, tallow and packing-house products of all kinds are insured hereunder-To pay particular average if amounting to three per cent., each tierce, barrel or package separately insured. The original sworn weights at place of shipment to be taken as basis of settlement, and underwriters agree ...

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