This is an action upon a policy of accident insurance. The policy was issued by the defendant corporation to the plaintiff, and the plaintiff's sister, Mrs. J.B. Manning, was named therein as beneficiary. It insured the *Page 339 beneficiary against the effect of external, violent and accidental injury (1) if caused solely and directly by the disablement or wrecking of a passenger car using steam, cable, compressed air or electricity as a motive power while the said person is riding as a passenger therein; or (2) if caused solely and directly by the wrecking or foundering of a steam vessel licensed for the regular transportation of passengers while the said person is on board such vessel as a passenger; or (3) "if caused by the burning of a building while the said person is therein." The action was brought on account of the death of the beneficiary by fire; and it was alleged in the complaint that the said Mrs. J.B. Manning received the external, violent and accidental injury which resulted in her death by means of burns caused by the burning of a building while the said beneficiary was therein.
The proof showed that Mrs. Manning was burned to death on December 7, 1906, in a room occupied by her at No. 233 West Fifty-fourth street in the city of New York. The fire broke out while she was alone in the room at about eleven o'clock in the evening. The cause or origin of the fire is unknown. Mrs. Manning's outcries gave the alarm to the other occupants of the house and, when they reached her, the clothing which she wore was almost burned off her and the bed clothes and bedding on her bed were in flames. A quantity of her clothing which hung on the door was also consumed; but the fire was speedily extinguished. The door is described as having been scorched, but no portion of thebuilding was burned.
Upon this state of facts the learned judge who presided at the trial directed a verdict for the defendant and judgment was entered accordingly. That judgment has been reversed by the Appellate Division upon the ground that death by accidental fire in a building was the crucial test of the defendant's liability and not whether more or less of the building itself was actually consumed.
In support of the order of reversal the respondent invokes the doctrine that inasmuch as an accident insurance policy, *Page 340 whatever may be its form, is intended by the parties to give indemnity for accidental injury, the courts will always go as far as they can to hold the insurer liable, unless in order to do so it is necessary to make a new contract for the parties; and we are referred to Hoffman v. Ætna Fire Ins. Co. (32 N.Y. 405), where it is said that when the language of a promisor may be understood in more sense than one it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. Reference is also made to the rule laid down by Mr. May in his work on Insurance, quoted with approval in Rickerson v.Hartford Fire Ins. Co. (149 N.Y. 307, 313) as follows: "When the words are, without violence, susceptible of two interpretations, that which will sustain his claim (that of the insured) and cover the loss must, in preference, be adopted." (1 May on Insurance [3d ed.], § 175.)
If we could find any ambiguity in the language of the contract of insurance in the present case the rule thus stated might well be applicable; but we are unable to do so. To a majority of the court the phraseology of the third clause of the policy insuring the beneficiary against external, violent and accidental injury, "if caused by the burning of a building while said person is therein," seems unmistakably to require the burning of a building, either in whole or in part, as a condition precedent to liability on the part of the insurer. We are not called upon to resolve a doubt in favor of the insured where there does not appear to be any reasonable doubt. The argument that when a person takes out a policy of accident insurance his general purpose is to secure indemnity against the consequences of accidental injury is admissible only with the qualification that he cannot reasonably expect indemnity outside the limitations of his contract; and when that contract expressly specifies the kind of accident which it covers, the rights of the insured and the liability of the insurer are measured by the specification. Where there is no ambiguity there is no occasion for the exercise of choice of interpretation; and the insurance policy is to be construed *Page 341 according to the plain and ordinary meaning of the terms which the parties have employed. (Preston v. Ætna Ins. Co.,193 N.Y. 142.) The burning of a building is not the same thing as the burning of articles in a building; and yet it is only by holding these terms to be absolutely equivalent in meaning that the defendant can be charged with liability in this case.
We cannot accede to the proposition of the learned Appellate Division that what this policy means "is to insure against accident caused by fire in a building." That is not what the contract says. Ordinarily a fire involving the burning of a building, in whole or in part, is a more serious casualty and less apt to occur than a fire which merely consumes some of its contents, without burning any part of the building itself. For a given premium, an insurance company might well be willing to indemnify against an accidental injury due to the less frequent occurrence, when it would not insure as against the consequences of more ordinary fires. Such a preference is at least conceivable; and assuming it to exist, how could the insurer evidence an intent to restrict the contract of indemnity to cases grave enough to include the ignition of the structure itself more aptly than is done by the language of the policy before us? No clearer phraseology occurs to us unless out of excessive caution a negative provision were to be added stating that the policy was not intended to cover accidental injuries caused by a mere fire in a building not consuming any portion of the edifice.
In our judgment, this is precisely what it means now. If it was the purpose of the parties to enter into a contract broad enough to embrace any accidental injuries occasioned by fire, it was easy enough for them to do so. We can determine their intent only by reference to the language they saw fit to use; and that language seems to us fatal to the claim of the plaintiff.
The order of the Appellate Division should be reversed, and the judgment of the Trial Term affirmed, with costs in both courts. *Page 342