
    National Filtering Oil Co., Resp’t, v. Citizens’ Insurance Company of Missouri, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Insurance—Fire—Evidence—What relevant to show risk insured —Insurable interest in royalties under a patent.
    The defendant- issued a policy reading as follows: “ On royalties payable to insured from the business of John Ellis & Co., carried on in premises situate etc. * * * Whereas the above named firm of John Ellis & Co., by virtue of an agreement with the insured, are bound to pay to them royalties for the privilege of using their patent, which royalties are guaranteed to amount to $250 per month; now, therefore, the condition of this insurance is that in case the premises occupied as above by said Ellis & Co. shall be damaged by fire so as to cause a diminution of said royalties, this company will make good to the insured the amount of such diminution during the restoration of such premises to their producing capacity immediately preceding the said fire.” The patent covered a certain process for filtering oil. A fire occurred which damaged the works to such an extent that it took ix weeks to restore them to their producing capacity. Held, that the agreement referred to in the policy was properly received in evidence; that it was relevant upon the question of the risk, assumed and the subject insured.
    2. Same—Policy—Construction op.
    
      Held, that the insurance covered and included the whole of the royalties; that the phrase “said royalties,” referred to the whole of said royalties, and was not restricted or narrowed by the descriptive statement that they —that is, the royalties insured—were guaranteed to be not less than $250 a month.
    8. Same—Wager policy—What is not.
    Five thousand one hundred and twenty gallons of oil were destroyed by the fire, upon which the royalties amounted to §255.84. Held, that the insurable interest was not limited by the quantity of oil on hand and destroyed, but was so connect'd with the structures burned or damaged, by reason of the exclusive character of the license to use the patent, that the fire destroying or damaging the building, necessarily destroyed the royalties pro tanto, and that hence the policy could not be regarded as a wager contract as applied to the excess of possible royalties over the guaranteed or limited amount of §250.
    4. Same—What interest insurable.
    An interest, legal or equitable, in the property, is not necessary to support an insurance upon it. Such an interest in property connected with its safety and situation as will cause the insured to sustain a direct loss from its destruction, is an insurable interest.
    6. Same—Proof of loss—What fart of the loss.
    
      Held, that there was no error in the mode of ascertaining and proving the loss by comparing the amount of royalties paid for the different months, including the period when work was suspended by reason of the fire; that the loss was not confined to royalties, upon the amount of oil actually destroyed by the fire, but that there was a loss which necessarily resulted from the enforced idleness of the works, against which, under the contract with Ellis & Co., plaintiff had no remedy.
    Appeal from a judgment of the supreme court, general term, first department, affirming judgment in favor of the plaintiff, recovered on the trial before the court in New York county.
    The defendant issued the policy in suit containing the provision given in the opinion.
    A fire occurred, which damaged the works to such an extent that it took about six weeks to restore them to their producing capacity. Five thousand one hundred and twenty gallons were destroyed by the fire, upon which the royalties amounted to $255.84. The patent covered a certain process for filtering oil.
    Upon the trial the agreement mentioned and referred to in the policy, was admitted in evidence under defendant’s objection and exception on the ground that only that part of it which had been incorporated into the policy, was á part of the contract of insurance. Defendant contended further that the risk it assumed, extended only to a diminution of the royalties below the guaranteed amount, and that as there was never such diminution, plaintiff ought not to recover; that the policy was a wager contract so far as it was made to apply to royalties beyond the guaranteed amount or minimum of $250 a month; that the extent of plaintiff’s insurable interest was governed and limited by the quantity of oil actually destroyed. It was established by the evidence that the license to use the plaintiff’s patent from which the royalties proceeded, was an exclusive one; and the earning power of the patent was narrowed _ to Ellis & Co. Under defendant’s objection and exception plaintiff was allowed to establish the loss for which the recovery was had by proving the amount of royalties paid by the month for the two months immediately preceding the fire, also, while the works were being restored, and for six months thereafter. Defendant contended that the recovery, if any, should be limited to the amount pf royalties due or to become due on the oil actually destroyed, upon the ground that the oil was the only tangible subject-matter with which the insurance was connected or that would legally sustain an insurable interest.
    
      G. A. Clement, for app’lt; F. R. Coudert and Paul Fuller, for resp’t.
    
      
       Affirming 34 Hun, 557, mem.
      
    
   Finch, J.

—The insurance, which forms the subject of this litigation, was of an unusual character, and presents a question for the solution of which we have no admitted precedent. It was an insurance upon the oil reducing and filtering works of Ellis & Co., and for the protection of specified royalties payable by that firm to the plaintiff as compensation for an exclusive license to use in their business a certain patent which belonged to and was controlled by the plaintiff* company, the policy, by its terms, insured that company, “upon royalties payable to insured from the business of John Ellis & Co., carried on in premises situate in Brooklyn, on block bounded by Sullivan, Wolcott and Ferris streets and Buttermilk channel,” and then proceeded with a more specified statement, thus: “Whereas, the above-named firm of John Ellis & Co., by virtue of an agreement with the assured are bound to pay to them royalties for the privilege of using their patent, which royalties are guaranteed to amount to $250 a month, now, therefore, the condtions of this insurance áre, that in the case the premises occupied as above, by said Ellis & Co., shall be damaged by fire so as to cause a diminution of said royalties, this company will make good to the insured the amount of such diminution during the restoration of said premises to their producing capacity immediately preceding said fire. In case of the destruction by fire of said premises, then this company shall pay the full amount insured.” That full amount was $1,000. Upon the trial the contract with Ellis & Co., referred to in the policy was read’in evidence under an objection taken by the defendant^ and was later withdrawn from the case, the defendant again objecting; but all controversy upon the subject seems to have been terminated by a stipulation of the parties, which permitted the original contract to be used on any appeal with the same force and effect as if printed in the case, It was so used in the general terrn, and the appellant’s brief treats it as in the case, but insists upon the objection taken to its admissibility.

That objection is not well founded. The royalties insured were the product of the contract. They sprang out of that, and were measured by it and depended upon it. The parties recognized and acted upon the fact. The policy in terms refers to the contract as the original and measure in the royalties, and recites the stipulations deemed most immediately material. We cannot perfectly understand the risk assumed and the subject insured, except by the very reference which the policy made to the contract which created the risk and disclosed and describes the royalties. It was properly put in evidence, and we must assume that the recital in the policy and the statement in the opinion of the general term fairly cover and express its conditions.

We are first to ascertain what loss was insured against. The defendant company contends that the risk it assumed extended no further than a diminution of royalties below the guaranteed minimum, and since there never was such diminution, that the judgment rendered was erroneous. But such is not the proper construction of the policy. That insured the royalties payable under the contract — not merely the guaranteed proportion, but the royalties stipulated—that is, the whole of them. Up to the minimum amount they depended upon the financial responsibility of Ellis & Co., for to that extent they were payable in any event, and the risk was on the licensees. But beyond that, they depended upon the running capacity of the works, and the amount of oil they could put upon the market, and which could be sold. The phrase “said royalties” in the policy refers to the royalties payable by force of the agreement, and to the whole of them, and is not restricted or narrowed by the descriptive statement that they—that is, the royalties insured—were guaranteed to be not less than $250 a month. Whatever they should prove to be, they were insured against a diminution caused by fire at the works, and not merely a minimum proportion or guranteed part of them.

But these royalties, it is argued, were not capable of supporting an insurance, and the policy was a wager policy. It is quite true that beyond the guaranteed minimum they were contingent and dependent upon the condition of the market, and even, possibly, upon the will or choice of Ellis & Co. in the reasonable control of their business. That firm were not bound to pay except upon oil manufactured and sold, and might limit both, or be compelled by the market to limit both to a production yielding no royalties beyond the guaranteed minimum; and so, it is said, the plaintiff had no fixed or definite right to royalties beyond such minimum, no assurance of their existence, no power to compel or demand their being, and could not be said to have lost what it neither had, nor the absolute right to possess. But a further fact in the case establishes more definitely the plaintiff’s risk and loss, and the direct causative connection between that loss and the fire which injured the works. The license held by Ellis & Co. to use the plaintiff’s patent was an exclusive one, and the earning power of that patent was thus narrowed to the business of Ellis & Co. If the latter did not continue their business, and so preserve the fruitfulness of the patent, by reason of some fault of their own, or from a cause for which they are responsible, the exclusive character of the license ended, and the patentees were at liberty to transfer the right to others, and thus secure the profits of their invention.

But if the business of Ellis & Co. was lessened or restricted because of a fire which should destroy or impair their works, the exclusive right given them was to continue; the patentees could not license others, and must necessarily bear the loss of their diminished royalties. This was the one business risk involved in their contract. Against all others they could provide, but this one they were compelled to bear by the terms of their agreement. Against that risk they insured. It had a direct and necessary connection with the safety of the structures burned. A fire destroying them destroyed the royalties pro tanto, became the efficient cause of their loss, and so was established the needed connection between the premises insured and the royalties dependent upon their safety and measuring the loss resulting from their destruction. The policy was therefore not a mere wager, and the royalties could be protected by an insurance against the fire risk which threatened them.

The authorities in this state go far enough in their general principles to cover the case in hand. Herkimer v. Rice, 27 N. Y., 163; Springfield F. & M. Ins. Co. v. Allen, 43 id., 389; Rohrbach v. Germania Fire Ins. Co., 62 id., 47. They decide that an interest, legal or equitable, in the property burned is not necessary to support an insurance upon it; that it is enough if the assured is so situated as to be liable to loss if it be destroyed by the peril insured against; that such on interest in property connected with its safety and situation as will cause the insured to sustain a direct loss from its destruction is an insurable interest; that if there be a right in or against the property which some court will enforce upon the property, a right so closely connected with it and so much dependent for value upon the continued existence of it alone as that a loss of the property will cause pecuniary damage to the holder of the right against it, he has an insurable interest. The plaintiff brought its case within these principles. A loss, measured by the diminution of its royalties, was the inevitable result to it of a fire in the works of Ellis & Co. It could not substitute a new licensee, and must await the repairs necessary to a renewal of the business. By its contract it became so situated relative to the buildings insured that it had a direct pecuniary interest in their safety from accidental fire. That interest it could, as it did, insure.

We are further of opinion that no error was committed in the mode of ascertaining and measuring the loss. The amount of royalties paid for two months immediately preceding the fire was proved; also the amounts during the time the works were being restored and for some months thereafter It was not confined to royalties upon the amount of oil actually burned. That could have been promptly replaced by Ellis & Co., with perhaps little delay and very moderate diminution of their volume of business. The bulk of the injury came from the enforced idleness of the works, against which under their contract the plaintiff company had no remedy. The amount of loss was established in' the only manner possible, and upon sufficient facts for the formation by the jury of a reasonable conclusion. They were not left to a bare guess or speculation.

The judgment should be affirmed, with costs.

All concur.  