By its "Advanced Ten Thousand Dollar Combination Accident Policy," dated September 12th, 1906, the defendant insured "the person so named as beneficiary (Mrs. J.B. Manning) against the effect of external, violent and accidental injury, (1) if caused solely and directly by" railway accident; "or (2) if caused solely and directly by" shipwreck; "or (3) if caused," the words "solely and directly" being omitted, "by the burning of a building while the said person is therein."
On the 7th of December, 1906, while the policy was in force, Mrs. Manning was burned to death by a fire which occurred in the house where she lived. There was a conflict in the evidence as to the extent of the fire and its effect upon the building, but the jury could have found, if the case had been submitted to them for decision, that the house itself was on fire. The fire occurred in a room of the building occupied by Mrs. Manning, and the witnesses all agree in substance that the bed clothes and mattresses of the bed upon which she slept were burned; that her night clothing was burned from her; that her clothes hanging in the room were burned; that the matting and rugs were covered with soot and water; that the room was filled with smoke, and that the fire therein was seen from the basement.
In addition to this, May Freely, who was sworn in behalf of the plaintiff, testified that she heard Mrs. Manning call to the witness and say: "Save my room, my little home. It is on fire." The witness went to the assistance of the unfortunate woman, and after the fire was out saw the result. She further testified: "I could see from the appearance of the room that it was badly burned at that time; everything was burned; her clothes off; thedoor was burned, and the bedding was badly burned; all the mattresses nearly consumed, and I could see that the carpet and matting on the floor were destroyed also, as it appeared to me at the time." Here we have the positive testimony of a witness, who saw the fire and saw the room right after the fire, that "the door was burned." This evidence was not met by the production at the trial, *Page 343 eighteen months after the fire, of a door showing no evidence of having been burned, for there were two doors to the room, and the jury could have found that the door not produced was burned. The door was a part of the house, and if the door was burned, the house was on fire.
How the fire caught is not disclosed. The first information we have on the subject is the frantic call of Mrs. Manning for help and her cry that her "little home" was on fire, and she well knew whether it was on fire or not. She was found immediately with her clothing on fire, in a room filled with flame and smoke, and when the fire was out one witness observed that "the door was burned." The case was not closely tried, and we cannot tell from the evidence what took fire first, although it seems probable that the bed caught first, and that the fire spread thence to Mrs. Manning and the contents of the room and from them to the door.
According to a strict and literal construction of the policy it is immaterial whether the building was on fire or not, unless Mrs. Manning's injuries were caused, as the policy states, "by the burning of a building." Even if the entire building had been destroyed, unless she caught fire from the burning building, there could be no recovery, provided the literal is the legal construction.
The policy does not require this narrow construction. It is to be observed that the words "solely and directly," used in insuring against accidents by railway and shipwreck, are no part of the clause in question and this discrimination at once suggests some latitude of construction as to the cause of the death. The insurance is against accident, not against fire, and the destruction of the building, however important in one kind of insurance, is not necessarily of any importance in the other. In an accident policy the clause would be understood by people generally to mean insurance against accident "caused by fire in a building while the said person is therein," and the learned Appellate Division so read it. It is the fire, the burning in a building, not of a building, that causes injury to the person supposed to be protected by the *Page 344 insurance and that is what the insured had the right to believe the insurer meant. Neither contracting party was looking after buildings, but after persons on fire in buildings and that was the unfortunate situation of Mrs. Manning. Even if no part of the physical structure had been burned, nearly every one would have said that the house was on fire.
The clause should be construed in accordance with the general purpose of the contract, which was to insure a human being against the effects of accident. This general purpose should not be cut down and the object of the contract defeated except by words of such clear and unmistakable meaning as not to require construction. "It is a rule of law, as well as of ethics, that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee." (Hoffman v. Ætna Fire Ins. Co., 32 N.Y. 405, 413.) As a great writer on insurance has said, and we have adopted his language in a late case, "No rule, in the interpretation of a policy, is more fully established, or more imperative and controlling, than that which declares that, in all cases, it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to the indemnity, which, in making the insurance, it was his object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must, in preference, be adopted." (May on Insurance, § 175; Rickerson v. Hartford FireIns. Co., 149 N.Y. 307, 313.)
A striking application was made of this rule, which was established long before Mr. May clothed it in such forcible language, in Northrup v. Railway Passenger Assurance Company (43 N.Y. 516). In that case the insurance was against death from personal injury "when caused by any accident while traveling by public or private conveyances, provided for the transportation of passengers." The insured while on a journey from one part of the state to another traveled by the Erie railway to Watkins, thence by steamboat *Page 345 to Geneva, intending to take a train of the New York Central at that place. The distance from the steamboat landing to the railway station was about seventy rods, and although she might have taken a public hack to carry her, she started with her friends to walk and "while in the usual route slipped and fell on the sidewalk, and in the fall the back of her head came in contact with the frozen snow and earth, and she sustained serious injuries thereby from which," soon afterward she died. It was held that the death was covered by the terms of the policy and that the deceased was to be regarded as having received the injury while traveling by public conveyance.
Here a literal construction would have prevented a recovery, for walking is not, in fact, "traveling by public or private conveyances provided for the transportation of passengers," but the court, construing the policy in accordance with its purpose, held that this was its meaning in law. As was well said by the Appellate Division: "If walking seventy rods upon a sidewalk of a village street is to be construed as traveling in a public conveyance for the transportation of passengers, it would seem to follow that a death caused by the burning of the contents of aroom in a building may fairly be construed to be caused by the burning of a building."
Moreover, the defendant prepared and executed the contract, and, hence, is responsible for the doubt which caused the courts below to differ, and ourselves as well, as to the meaning of the clause in question. (Rickerson v. Hartford Fire Ins. Co.,supra.) It will not do to recognize these rules as the law governing construction, and yet refuse to apply them in a case where ambiguity of meaning is demonstrated by a difference of opinion as to what the real meaning is, not only in the courts below, but in the very court about to decide the case. A refusal to apply under such circumstances is pro tanto a destruction of the rule itself.
I think that the trial court erred in refusing to allow the plaintiff to go to the jury and in directing a verdict for the *Page 346 defendant, an exception in due form having been taken to each ruling.
The order of the Appellate Division should be affirmed and judgment rendered against the appellant, with costs in all courts.
CULLEN, Ch. J., EDWARD T. BARTLETT, HISCOCK and CHASE, JJ., concur with WILLARD BARTLETT, J.; HAIGHT, J., concurs with VANN, J.
Order reversed, etc.