{ "id": 5431976, "name": "Clarke & Company, Appellee, v. Fidelity & Casualty Company of New York, Appellant", "name_abbreviation": "Clarke & Co. v. Fidelity & Casualty Co. of New York", "decision_date": "1921-03-17", "docket_number": "Gen. No. 6,876", "first_page": "576", "last_page": "583", "citations": [ { "type": "official", "cite": "220 Ill. App. 576" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "213 Ill. 523", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3312877 ], "opinion_index": 0, "case_paths": [ "/ill/213/0523-01" ] }, { "cite": "23 Ill. 56", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5803318 ], "opinion_index": 0, "case_paths": [ "/ill/23/0056-01" ] }, { "cite": "295 Ill. 86", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5068942 ], "opinion_index": 0, "case_paths": [ "/ill/295/0086-01" ] }, { "cite": "188 Pac. 780", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "220 S.W. 163", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 10301110 ], "opinion_index": 0, "case_paths": [ "/sw/220/0163-01" ] }, { "cite": "175 N. Y. Supp. 610", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "178 Pac. 817", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "98 S. E. 890", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "83 W. Va. 647", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8634484 ], "opinion_index": 0, "case_paths": [ "/w-va/83/0647-01" ] }, { "cite": "88 S. E. 599", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "78 W. Va. 88", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8630541 ], "opinion_index": 0, "case_paths": [ "/w-va/78/0088-01" ] }, { "cite": "69 W. Va. 598", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8633559 ], "opinion_index": 0, "case_paths": [ "/w-va/69/0598-01" ] }, { "cite": "240 Ill. 205", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3423647 ], "opinion_index": 0, "case_paths": [ "/ill/240/0205-01" ] }, { "cite": "210 S. W. 381", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "276 Mo. 539", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1833390 ], "opinion_index": 0, "case_paths": [ "/mo/276/0539-01" ] }, { "cite": "108 Ill. 16", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 831516 ], "opinion_index": 0, "case_paths": [ "/ill/108/0016-01" ] }, { "cite": "180 Pac. 45", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "40 Cal. App. 113", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2048932 ], "opinion_index": 0, "case_paths": [ "/cal-app/40/0113-01" ] }, { "cite": "207 S. W. 258", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 } ], "analysis": { "cardinality": 686, "char_count": 15057, "ocr_confidence": 0.537, "pagerank": { "raw": 2.830612768707357e-07, "percentile": 0.8391315478238307 }, "sha256": "d1a4daa74486a8ce0cf61f54d702daab8d4db666e2f9caf05ef0562f427c3cec", "simhash": "1:22077f539cfd4edc", "word_count": 2575 }, "last_updated": "2023-07-14T18:32:02.569752+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Clarke & Company, Appellee, v. Fidelity & Casualty Company of New York, Appellant." ], "opinions": [ { "text": "Mr. Justice Heard\ndelivered the opinion of the court.\nAppellant issued to appellee, who conducted a dry-goods store in Peoria, a burglary insurance policy. While the policy was in force between the closing of the store on the evening of November 20, 1919, and its opening for business the next morning, a locked glass door of what is known as an island display window of the store was pried open with a tool which left visible marks on the metal frame of the door and a Hudson seal coat, a vanity case, a coral necklace and a mesh bag were stolen from the island show window. Appellee brought suit on the policy against appellant and a trial was had before the court without a jury. On the trial it was stipulated by the. parties that the fair cash market value of the coat was $675, of the vanity case $12.50, and that appellant\u2019s liability, if anything, was $25 each for the mesh bag and coral necklace. The court found for appellee and rendered judgment against appellant for $737.50 damages and costs of suit from which judgment this appeal was taken.\nAppellant filed the general issue and five special pleas, the fifth of which was later withdrawn. The second plea denied all liability on the ground that the stolen goods were not taken, \u201cfrom within the premises\u201d as defined by the insurance policy. Appellant\u2019s third plea set up that certain of the articles taken were articles of jewelry on which appellant\u2019s liability was limited. This was admitted by the stipulation of facts and properly taken into consideration by the court in fixing appellee\u2019s damages. Appellant\u2019s fourth plea denied all liability under a clause of the policy which stated that there should be no liability for loss, \u201con any. show case, or contents thereof, located outside of the premises.\u201d Appellant\u2019s sixth plea set up that appellant\u2019s liability under the policy was limited to $200 as a whole and to $25 as to any one article under a certain clause of the policy, hereinafter set forth.\nThe policy provides among other things that the insurance company shall indemnify appellee \u201cfor all loss by the felonious taking of property from within the premises.\u201d The policy then defines \u201cPremises\u201d as follows: \u201cIf the Assured occupies the entire building designated in the schedule, the term is limited to the interior of the said building, excluding public entrances, public halls, and public stairways.\u201d Appellee occupied the entire building.\nThe policy also provides: \u201cThe Company shall not be liable for any loss on property abstracted from within a show \"window of the premises by a person who shall have broken the glass thereof from the outside, in excess of $200.00 suck as respects any one article to a limit of $25.00.\u201d\nThis is the clause of the policy upon which the sixth plea was based. The glass of the island display -window was not broken and there was, therefore, no evidence in the case to substantiate the sixth plea.\nThe policy also provided that appellant should not be liable for loss \u201con any show case, or contents thereof, located outside of the premises.\u201d\nThe policy contains no mention of an island display window. The main question in the case, therefore, is whether this island display window is a part of \u201cthe interior of the building\u201d or is a \u201cshow case located outside of the premises\u201d or whether it is entirely without the provisions of the policy as answering neither of these descriptions.\nIn construing a policy of insurance, it is the duty of the court to ascertain, if possible, the intention of the parties from the written or printed words used by them in the contract. Swartz v. Hiler (Mo. App.), 207 S. W. 258; White v. Greenwood, 40 Cal. App. 113, 180 Pac. 45.\nIf the words of the contract are plain and unambiguous the contract must be so construed as to give effect to the plain and obvious import of the language used, unless to do so would lead to unreasonable or absurd consequences. Bearss v. Ford. 108 Ill. 16; Kansas City v. Public Service Commission, 276 Mo. 539, 210 S. W. 381. In Wilkinson v. \u00c6tna Life Ins. Co., 240 Ill. 205, in construing a policy of insurance which provided indemnity in case injury to the insured were sustained \u201cin consequence of the burning of a building in which the insured shall be at the commencement of the fire,\u201d the court said: \u201cThe word \u2018building,\u2019 as used in this form of policy, should be held, we think, to include the contents of said loft. It has been repeatedly held that a contract of insurance like the one on which this suit is based, if there is any ambiguity in the language used in the policy, as the language found in the policy is that of the insurance company and not of the- insured, should be favorably \"construed on behalf of the insured and so as not to defeat a recovery in favor of the insured.\u201d\nIn determining what significance should be given to language where used in a contract, the situation of the parties^ the nature of the subject-matter with which they are dealing and the purpose sought to be accomplished are matters to be considered by the court. Raleigh Lumber Co. v. William A. Wilson & Son, 69 W. Va. 598; Snider v. Robinett, 78 W. Va. 88, 88 S. E. 599; Wetterwald v. Woodall, 83 W. Va. 647, 98 S. E. 890. The meaning of a contract may frequently be determined by resort to the doctrine of probability or reasonableness. Leezer v. Fluhart, 105.Wash. 618, 178 Pac. 817; Carns v. Bassick, 175 N. Y. Supp. 610. In the constructions of a contract the instrument should be read and considered as a whole. Hunter v. Gulf Production Co. (Tex. Civ. App.), 220 S.W. 163; Mikusch v. Beeman (Wash.), 188 Pac. 780; Dick v. Goldberg, 295 Ill. 86.\nIn addition to the provisions of the policy heretofore quoted, it, and the schedule attached thereto, contain the following: \u201cNo. 1. Property, within the meaning of this policy, is limited to such articles of merchandise as are commonly carried in the line of business conducted by the Assured, as specified in Statement No. 5 of the schedule.\u201d Section 5 of the schedule contains the following: \u201cThe business conducted by the Assured in the premises is that of dry goods, etc.\u201d \u201c3. The address of the premises is 102-4-6 S. Adams Street, Peoria, Illinois.\u201d \u201c4. At the said address of the premises, the Assured occupies entire building used as follows: Dry goods in basement, First and Second floors, rugs and draperies on third floor, dressmaking and workroom on the fourth floor.\u201d\nThe premises 102-4-6 S, Adams St, have a street frontage of about 70 ft., the central portion of which consists of the island display window in question. This island display window is approximately 4.4 ft. 9 in. long and 6 ft. wide with a floor space of over 250 square feet. Its front abuts upon the street sidewalk and its other three sides abut upon a passageway or arcade, about 6ft. in width, which, is open to the public at all times. This arcade is provided with no means of excluding the public therefrom. The entrance to the storeroom proper consists of revolving doors opening from this arcade about opposite the center of the island display window.\nThe island display window was inclosed on all sides with glass set in metal frames, the lower part being heavy clear plate glass and the glass at the top of the front and back was prism glass so constructed as to throw light from the street towards the rear of the building. In its front were four upright pillars covered with marble in which were steel beams forming supports for the front of the building. These pillars also contained pipes carrying steam for heating purposes to the upper floors of the building. The floor formed part of the ceiling of the basement and the ceiling formed part of the floor of the second story of the building. Under this ceiling there were metal pipes extending towards the rear of the building forming part of a sprinkling system installed throughout the building for fire protection. The island display window was made to withstand heat, cold and the elements. The entrances to it were at the corners most remote from the street, glass paneled doors with metal frames the glass panels being 2 ft. 8\u00bc in. wide and 6 ft. 8\u00bd in. high, the doors being furnished with locks.\nFrom this description it is manifest that this display window was not \u201ca show case located outside of the premises\u201d but was an integral part of the building and that, therefore, appellee\u2019s action is not barred by reason of anything contained in appellant\u2019s fourth plea.\nThe only remaining question is were the goods stolen from .within the premises, i. e., from \u201cthe interior of the building.\u201d\nThe Century Dictionary defines \u201cinterior\u201d as \u201cBeing within; inside_ of anything that limits, incloses or conceals; internal; opposed to exterior or superficial; as, the interior of a house.\u201d \u201cExterior\u201d is defined as \u201cThe outer surface or aspect; the external features; as, the exterior of a building.\u201d \u201cExternal\u201d is defined as \u201cpertaining to the outside merely; superficial\u201d; and \u201csuperficial\u201d is defined as \u201clying in, on or pertaining to the superficies or surface; not penetrating below the surface literally or figuratively; being only on the surface.\u201d March\u2019s Thesaurus gives \u201cinside\u201d as the kindred term and \u201coutside\u201d as the antithesis of \u201cinterior.\u201d\nKeeping in mind these definitions it is clear that the island display window was in fact a.part of the interior of the building.\nBy the terms of the policy, public entrances, public halls and public stairways in the interior of the building were specifically excluded, and these parts of the interior having been specifically excluded by a familiar rule of construction,' all other parts of the interior of the building must have been intended to be included under the provisions of the policy. Finley v. Steele, 23 Ill. 56; Rubens v. Hill, 213 Ill. 523. Expressio unius est exchosio alterius. The expression of one thing is the exclusion of another. Co. Litt. 210a. The express mention of one thing, person or place implies the exclusion of another. Black\u2019s Law Diet. 468. The agent of appellant visited and inspected the premises before issuing the policy, and while the policy contains over thirty limitations and exceptions, goods in the island show window are not specifically excepted. The policy provides that \u201cProperty, within the meaning of this policy, is limited to such articles. of merchandise as are commonly carried in the line of business conducted by the Assured, as specified in Statement No. 5 of the schedule,\u201d and that specification is that \u201cThe business conducted by the Assured in the premises is that of dry goods, etc.\u201d The address of the premises is given as 102-4-6 S. Adams Street, Peoria. The clause of the schedule which next precedes No. 5 of the schedule recites that at said address of the premises the assured occupied the entire building and specifies the use to which each floor is put. It was evidently the intention of appellee and appellant\u2019s agent to have the policy cover all such articles in the building 102-4-6 S. Adams Street, Peoria, as were commonly carried in the line of business then conducted.\nWhen all the terms of the policy are considered together, we are clearly of the opinion that goods stolen from the island display window in question were stolen \u201cfrom the interior of the building\u201d as that term is used in the policy of burglar insurance upon which suit was brought, and that appellant is therefore liable therefor.\nThe judgment is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Heard" } ], "attorneys": [ "Hunter, Page & Kavanagh, for appellant.", "Kirk & Shurtleff, for appellee." ], "corrections": "", "head_matter": "Clarke & Company, Appellee, v. Fidelity & Casualty Company of New York, Appellant.\nGen. No. 6,876.\n1. Insurance, \u00a7 391 \u2014limitation of liability under burglary policy. A policy of burglary insurance limited the liability in case of goods stolen from a show window by a person who shall have broken the glass thereof from the outside. Held, that this did not apply where the door of an island display window was pried open and goods stolen therefrom.\n2. Insurance, \u00a7 120*\u2014construction of policy. In construing a policy of insurance, it is the duty of the court to ascertain, it possible, the intention of the parties from the written or printed words used by them in the contract.\n3. Insurance, \u00a7 120*\u2014construction where contract plain and unambiguous. If the words of a contract of insurance are plain and unambiguous, it must be so construed as to give effect to the plain and obvious import of the language used unless to do so would lead to unreasonable or absurd consequences.\n4. Insurance, \u00a7 120*\u2014what to be considered in construing policy. In determining the significance of language used in a policy of insurance, the situation of the parties, the nature of the subject-matter and the purpose sought to be accomplished may be considered by the court.\n5. Insurance, \u00a7 120*\u2014construction of policy. The meaning of a contract of insurance may frequently be determined by resort to the doctrine of probability and reasonableness.\n6. Insurance, \u00a7 120*\u2014construiiig policy. In construing a policy of insurance, the instrument should be read and considered as a whole.\n7. Insurance, \u00a7 129*\u2014construction of burglary policy. An island display window facing the street and separated from the main store by an arcade open at all times, but the top of the island display window forming the floor of the second story, and its floor the ceiling of the basement, is not a \u201cshow case located outside of the premises\u201d within the meaning of a burglary policy excluding goods in such show case. , - O\n8. Insurance, \u00a7 129*-\u2014construction of burglary policy as to exclusions. Where a burglary policy excluded public entrances, public halls and public stairways from its provisions, an island display window facing the street and separated from the main floor by an arcade, which was always open to the public, is not excluded.\n9. Insurance, \u00a7 129 \u2014construction of \"burglary policy as to property covered. A policy of burglary insurance covering goods stolen from \u201cthe interior of a building\u201d includes goods stolen from an island display window facing the street and separated from the main room by an arcade but the top of which formed the floor of the second story and its bottom the ceiling of the basement, since such display window comes within the usual definition of \u201cinterior.\u201d\n10. Insurance, \u00a7 129*\u2014construction of policy. The maxim \u201cMxpressio unius est exclusio alterius,\u201d the expression of one thing is the exclusion of another, applies in the construction of a policy of insurance, and hence where a burglary policy covered goods in the entire premises except in certain specified places, goods in a display window not specifically excluded were covered by the policy.\nAppeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding. Heard in this court at the October term, 1920.\nAffirmed.\nOpinion filed March 17, 1921.\nHunter, Page & Kavanagh, for appellant.\nKirk & Shurtleff, for appellee.\nSee Illinois Notes Digest. Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0576-01", "first_page_order": 604, "last_page_order": 611 }