delivered the opinion of the court:
We think the circuit court misinterpreted the meaning of the policy. The design of the parties to the policy was to provide and secure indemnity against loss by fire to property in the custody of the express company while in transit. The property to be insured was such as should be in the possession of the express company and in transit in its cars at the time of the loss by fire, and therefore the liability of insurer could not be limited by the specification of certain articles of property in the policy or to such articles only as should be destroyed at designated 0 points or places. The nature of the business of the assured and the situation and character of the property demanded a contract to a degree general in terms as to property and the location thereof. Business prudence on the part of the insurer, however, forbade the issuance of policies wholly without restriction or conditions as to property and the place of its destruction. The number of cars to be used or likely to be used, and where the same were to be transported, entered materially into consideration, and the average amount of business to be transacted became also an important feature. This data as to given lines of railroad was obtainable. The lines of railroads owned, leased and operated by the Northern Pacific Railroad Company when the policy was written were then known to the contracting parties.v The extent of their mileage, the territory they traversed, the dangers from fire to be apprehended along such lines, and the approximate number of express cars that would be needed to answer the purposes of the business of the express company in the territory through which such lines of road passed, the contents whereof were the subject matter of the indemnity, were elements entering into the contract of insurance. The designation of the lines of railroad in the policy was with the design of limiting the liability of the insurance company to losses by fires to property while in transit on those lines and as matter of description of the identity and locality of the insured property. In policies covering stocks of merchandise similar methods are adopted in order to establish the identity and locality of the stock which is to be protected, — as, for instance, describing the insured property to be a stock of merchandise contained in a brick building belonging to A B, situate at the corner of given streets. In such policies the designation of the building is merely matter of description of the identity and locality of the property to be covered by the policy, and it is not essential to the right of the owner of the stock that is so insured to recover, the ownership of the building shall be the same at the time of the fire as at the time the policy was issued.
It is manifest the care and prudence of the Northern Pacific Railroad Company in the operation of its trains was not the consideration which induced the designation of the lines of railroad of that company as defining the liability of the insurer, for the reason that liability attached upon all lines then owned by said railroad company, whether operated by it or not. A contrary construction of the policy, though urged in this case by the insurance company, would operate unjustly and harshly against such companies. After the execution of such a policy the railroad company whose lines of railroad were adopted in such policies for the purpose of defining the territory within which the'insurance company should be liable to respond for the destruction of property by fire, might acquire by purchase or lease, or operate under contract, many other additional lines of railroad located through entirely different territory, and if the construction contended for should be given the policy, an express company holding such policy might extend its business over such additional lines and operate its cars on any or all such after acquired lines of railroad, and be protected by the policy issued to it at a time when such railroad company had but a single line of railroad.
The judgment of the Appellate Court and that of the circuit court are each reversed, and the cause is remanded to the circuit court with directions to overrule the demurrer and require the defendant company to plead to the declaration.
Reversed and remanded.