STANDARD ACCIDENT INS. CO. v. GOLDBERG

STANDARD ACCIDENT INS. CO. v. GOLDBERG
1926 OK 891
250 P. 892
120 Okla. 108
Case Number: 17033
Decided: 11/09/1926
Supreme Court of Oklahoma

STANDARD ACCIDENT INS. CO.
v.
GOLDBERG.

Syllabus

¶0 1. Insurance--Construction of Policy--Intent of Parties. An insurance policy should be interpreted by the rules which are applicable to other written contracts, to ascertain and give effect to the meaning and intention of the parties as expressed by the written contract.
2. Contracts--Ambiguity--Evidence to Clarify--Issue of Fact for Court or Jury. If a written contract be ambiguous, it is the duty of the court to examine the entire contract and declare the meaning of the instrument as expressed by its terms, if it can be determined therefrom. If the ambiguity cannot be clarified from an examination of the entire written instrument, the court should hear testimony for the purpose of ascertaining the meaning and intention of the parties as expressed by the contract, unless there be a dispute between the parties as to material questions of fact. In a law action, if there be a dispute between the parties on material questions of fact, relating to the intentions of the parties, where there is an ambiguity in the contract, then the issue becomes one of fact for determination by the jury under proper instructions of the court.
3. Insurance--Recovery on Robbery and Theft Policy Sustained. Record examined; held, to be sufficient to support judgment in favor of the plaintiff.

Randolph, Haver, Shirk & Bridges and H. M. Gray, for plaintiff in error.
O'Meara & Silverman, for defendant in error.

STEPHENSON, C.

¶1 Harry Goldberg was engaged in the jewelry business and in making personal loans on pledges of personal property as security therefor, in the city of Tulsa. The assured conducted the business of the two enterprises in the same building. Abend & Blazer took the application of Harry Goldberg for the robbery and theft insurance policy sued on in this action. The agents did not write this class of insurance, and turned the application over to Brink & Cramer, who were agents for the Standard Accident Insurance Company of Detroit, Mich. The insurance company caused its policy for robbery and theft insurance to be executed and delivered to Harry Goldberg. The policy named Harry Goldberg as assured. Item No. 8 of the policy reads in the following language:

"The property insured under indemnity paragraph No. 2 is jewelry store."

¶2 Item No. 9 reads in the following language:

"Insured's business is jewelry store.

¶3 Paragraph B describes the property insured and reads in the following language:

"The company shall not be liable for loss: (1) Unless the robbery is established by reasonable evidence; (2) of any property unless it belongs to the assured, or is held by him in trust, or as collateral for indebtedness to the assured, or is held by the assured in such capacity as would render him legally liable to the owner thereof for such loss of the property as is covered hereby, * * *"

¶4 On the morning of December 26th, at about 8:30 o'clock, bandits entered the store building after it had been opened for business, and by use of firearms compelled the employees of the assured to deliver to them jewelry and valuables in the custody of the assured, to the value of about $ 10,000. The assured commenced his action against the Standard Accident Insurance Company on its policy for the full amount of the insurance against robbery, in the sum of $ 5,000. The jewelry and valuables procured by the robbers were property pledged to Harry Goldberg, and then held by him as collateral security for personal loans made to the owners of the pledged property. The petition charged that the policy covered property pledged with the plaintiff as collateral security for loans made to the owners of the property. The defendant answered that the policy covered only jewelry and valuables owned by the assured, and held by him for sale to the public in the conduct and operation of his jewelry store. It is the contention of the insurer that the making of personal loans, and taking personal property as collateral security, is not a class of business involved in the vending of jewelry through the operation and conduct of a jewelry store. The assured admits the proposition that the making of personal loans and receiving of personal property as pledges is not involved in the usual conduct of a jewelry store, but urges that it was the intention of the assured and of the agents, Abend & Blazer, to cover both the jewelry business and loan business by the terms of the policy. The assured points to that part of paragraph "B," as quoted above as evidence of the intention of both parties to cover the property offered for sale through the jewelry store, and that held as collateral security for loans to the owners of the property. It is said by the assured that the construction contended for by the defendant would render the phrase "or as collateral for indebtedness to the assured" meaningless, and of no force in the contract, if the view of the insurer is taken, to the effect that the policy only covered property owned by the assured for vending to the public through the jewelry store. The trial of the cause resulted in the court instructing the jury that the lost property came within the terms of the policy, and sent the question of value to them. The jury returned its verdict for the plaintiff for the full amount sued for. The defendant has perfected its appeal, and among the several propositions assigned as error for reversal is, the contention that the policy did not cover the personal property pledged with the assured, and which was lost on account of the robbery.

¶5 An insurance policy should be interpreted by the rules which are applicable to other written contracts to ascertain the meaning and intentions of the parties as expressed by the written contract. Fidelity & Casualty Co. v. Curtis Brown Co., 105 Okla. 136, 232 P. 99. If a contract be ambiguous in its terms, the court should examine the entire contract for the purpose of declaring the meaning and intentions of the parties as expressed by the entire contract. If the court is unable to determine the meaning of the contract from its terms, by reference to the entire contract, it should then hear testimony of witnesses to determine the meaning and intention of the parties as expressed by the contract. If there be dispute between the parties on any material issues of fact involved in the hearing, to determine the meaning and intention the parties sought to express by the written agreement, the question then becomes one of fact for submission to the jury under proper instructions of the court. Kansas City Southern Ry. Co. v. Whitaker et al., No. 15442, 115 Okla. 212, 242 P. 220; Brooks et al. v. J. R. Watkins Medical Co., 81 Okla. 82, 196 P. 956.

¶6 Section 6723, C. O. S. 1921, reads in the following language:

"Solicitors Agents of Company: Any person who shall solicit and procure an application for insurance shall in all matters relating to such application for insurance and the policy issued in consequence thereof, be regarded as the agent of the company issuing the policy, and not the agent of the insured, and all provisions in the application and policy to the contrary are void and of no effect whatever."

¶7 The effect of the section was to make Abend & Blazer the agents of the plaintiff in error in procuring the application for the policy, as the plaintiff in error accepted the application through Brink & Cramer, its representatives, and caused the policy to be issued on the application. Blazer testified in the trial of the cause that Harry Goldberg desired the policy to be written on the jewelry and merchandise sold through the jewelry store, and also on the property received by Goldberg as pledges to secure loans to the owners. Blazer testified that he described the property to be covered by the policy as "jewelry and loan business." The application upon which the policy was written was not introduced in evidence in the trial of the cause. Rules of construction require us to look to all parts of the contract to determine the meaning and intention of the parties as expressed by the writing. We shall assume that all terms and provisions embodied in the written agreement were intended to be given effect by the parties, and that all terms used in the contract were employed for the purpose of expressing the meaning and intention of the parties. The term "jewelry store," as used in the policy sued on in this action, performs a two-fold purposes--that of describing the property covered by the policy, and also establishing its location. Except for the language of paragraph "B," we would understand the phrase to mean, that the plaintiff was insured against loss of jewelry owned by him for the purpose of vending to the public through the jewelry business, if the property was located in the store building at the time of its loss. We would say that the phrase standing alone would confine the insurance to jewelry owned by the plaintiff for the purpose of selling to the public through the jewelry store, if it was lost by a robbery from the store building, but this phrase must be construed in connection with the language quoted from paragraph "B." The insurance company makes the point that the taking of personal property to secure personal loans to the owners does not come within the business of operating a jewelry store. But it is equally true that the operators of a jewelry store do not generally pursue the business of taking pledges of jewelry on unpaid purchase prices of jewelry sold from the store. However, under paragraph "B," it would not be material whether the pledged property was received to secure the unpaid purchase price of jewelry sold from the jewelry store, or was received in the course of the conduct of a strictly pawn brokerage business in the same building The plaintiff is insured against the loss of property from the jewelry store held by him as collateral security for indebtedness owing to him, according to the terms of the policy. The phrase "or as collateral for indebtedness to the insured," discloses an intention on the part of the plaintiff in error to insure the defendant in error against loss of property pledged with him to secure the payment of indebtedness owing to the assured. The policy shows upon its face that it was the intention of the plaintiff in error to go further than insuring property owned and offered for sale in the jewelry business. The plaintiff's loss came within the terms of the policy when he showed that he lost property pledged to him to secure indebtedness owing to him, and that the property was situated in the jewelry store building at the time it was taken by the bandits. Paragraph "B" requires only that the pledged property be held to secure indebtedness owing to the plaintiff, and that it be located in the jewelry store building at the time of the loss. The plaintiff would be within the terms of the policy, if he had received the pledges to secure indebtedness arising either in the conduct of the jewelry business, or the pawn brokerage business. The policy goes no farther than to require that the plaintiff held the property as a pledge to secure indebtedness owing to him. If we accept the construction contended for by the plaintiff in error, it would eliminate and render superfluous that part of paragraph "B" relating to pledged property. In view of the fact that the plaintiff was conducting a pawn brokerage business in the jewelry store at the time the policy was written, we assume that the part of paragraph "B" relating to pledged property was intended to cover personal property received by the assured in the course of the conduct of the pawn brokerage business to secure indebtedness owing to the assured.