
    Nathaniel Hayward, Appellant, v. The Liverpool and London Insurance Company, Respondent.
    Defendant insured the factory of plaintiff, including steam-engine, against loss by fire, but expressly excepted loss occasioned by "any explosion.” The premises were destroyed by fire caused- by an explosion of one of the boilers.
    
      Held, that the case was within the exception of the policy, and defendant was not liable.
    Distinction between this case and Harper v. Albany Insurance Go. (17 U. Y. 194), and Bryant v. Pouglikeepsie Insurance Go. (id. 200), noted.
    Appeal from the Superior Court of the city of New York. The action was for the recovery of $10,000 and interest on a policy of insurance covering the india-rubber factory, etc., of the plaintiff, at Providence, Rhode Island. The fire which destroyed the factory arose from an explosion of one of the boilers of the steam-engine.
    The cause was tried before Mr. Justice Hoffman, without a jury. The facts found by him entitled the plaintiff to judgment, unless the cause of the fire was one for which the company was not liable under the provisions of the policy.
    The facts, so far as they are material to this question, are these: The written statement of the subject of insurance, as contained in the policy, was as follows: On the building
    occupied as an india-rubber factory, and on property therein contained, situate, etc., $800 on building No. 1 on plan, etc..; $2,200 on machinery, tools, steam-engines, and shafting, contained in building No. 1,” etc.
    In the printed part of the body of the policy was this clause: “ Provided always, and it is hereby declared and agreed, that this company shall not be liable to make good any loss or damage b J fire which shall happen or a/rise from any foreign invasion, -insurrection, riot or civil commotion, or any military or usurped power, or by any explosion, earthquake or hurricane; and the policy shall remain suspended- and of no effect, in respect to any loss which may happen to arise during the period of -any of these contingencies.”
    
      Among the conditions printed upon and referred to in the policy was the following: “ The company will not be answerable for * * loss or damage by explosion of any kind.”
    The policy was for $10,000, and the premium paid was two and a half per cent, or $'250, being a premium upon an extra-hazardous risk; and the excess of premium was taken by reason of a steam-engine being insured. A steam-engine is necessarily and ordinarily used in the carrying on of an ' india-rubber factory. In conducting the manufacture of indiarubber shoes, the shoe, after being formed upon a last, is placed in a heater for the purpose of vulcanization, and subjected to a heat of two hundred and eighty degrees.
    The fire in question occurred on the 29th of October, 1857. It .originated from, and was caused byj an explosion of one of the boilers of the steam-engine belonging to and used in the factory, and covered by the policy of insurance. ■
    The judge held, as a conclusion of law, that the case was within the exception in the policy, and that the defendant was not liable. The judgment was affirmed at the General Term, the opinion'of the court being delivered by Mr. Justice Woodruff, The case is reported in 7 Bosworth,'385.
    
      Luther R. Marsh, for the appellant.
    
      Alexander Hamilton, Jr.,-and Samuel E. Lyon, for the respondent.
   Porter, J.

The insurance of property, in contemplation of its use for a known and specified purpose, imports, ex m termini, a license to keep the articles and employ the agencies incidental and essential to beneficial enjoyment for the use proposed. Against a license of this nature, implied from the language used in the written portion of the policy, a printed prohibition in some other portion.of the instrument will not be allowed to prevail. This was the principle settled in the cases on which the appellant mainly relies. (Harper v. Albany Insurance Company, 17 N. Y. 194; Bryant v. Poughkeepsie Insurance Company, id. 200.)

We see no reason, however, for extending it to a case like this, where there is no inconsistency between the written and the printed clauses, and where full effect can be given to all "■ parts of the instrument, in harmony with the manifest intent of the parties.

The company does not claim a forfeiture by the plaintiff of his rights through the use of the boiler in question, but appeals to a mutual stipulation in the contract that the insurer should not be held liable for injuries resulting from a particular cause. The use of a steam-engine, generating a high degree of heat, would necessarily expose the property to more than ordinary danger, and an extra premium was accordingly charged for the risk. There was one hazard, however, connected with its use, which the company refused to assume, and for which it received no compensation. The language of the stipulation is plain, and its purpose entirely obvious. The plaintiff was at liberty to keep and use shafting, engines, boilers, and whatever else was customary and needful in conducting the business of his factory. The insurer was to make good any injury to the property by fire; provided always that such fire should not be caused by any explosion;” and, in that case, it was mutually agreed that the defendant should not be liable to make good the loss. The injury resulted from such an explosion; and there is no principle on which the company can be charged with a liability from which it was absolved by the plaintiff,, in the very contract on which he sues. (St. John v. American Insurance Company, 1 Kern. 516; Strong v. Sun Insurance Company, 31 N. Y. 103.)

The judgment should be affirmed.

Parker, J.

The provision in the policy that the company will not be liable to make good any loss or damage by fire, which shall happen or arise by any explosion—repeated in the conditions appended and referred to in the policy—must, I think, be taken to include an explosion of the steam-engine insured, as well as any external explosion.

There is no inconsistency in such construction, with the fact that the engine itself was insured against fire. The company might well say: “We will insure your factory, engine included, against any fire, produced from every cause, except an explosion of the engine.” So far from there being any inconsistency in this, it is impossible to say that it was not a wise and sensible provision, intended to induce carefulness in the management of the engine, and to refuse the risk of carelessness in its use. It is said the defendants have been paid an extra price for the risk caused by the engine, still the exception of the risk of its explosion is not inconsistent with that fact. Undoubtedly the use of a steam-engine, without respect to its Lability to explode, increases the hazard of loss by fire to a building, in various ways, which sufficiently accounts for the extra charge for insurance where one is used. In the case of Harper v. The Albany Mutual Ins. Co. (17 N. Y. 194), relied upon by the defendants, the doctrine affirmed was, that, in construing a policy of insurance, the intent of the parties is to be gathered from both the written and printed portions, and effect given to both, so far as can be; but in case of repugnancy between them, the written part shall prevail over the printed part, and the principle was illustrated by the learned judge who gave the opinion of the court, in the following manner: “When the insurance is directly upon the stock in trade, as for example, in the business and manufacturing and sale of camphene, to hold that a general printed prohibition (contained in every policy) against keeping or using it, unless permission be specially given and indorsed upon the policy, would have the effect to nullify its direct and positive stipulations, and would be preposterous.”

The case at bar is very different from that of Harper v. The Albany Mutual Ins. Co., and, as we have seen that there is no repugnancy between the insurance of the engine against loss by fire and the exception of loss and damage by fire occasioned by thq explosion of the engine, it is not within the principle of that case.

The inquiry always is, is there, between the exception and the scope’of the undertaking in the policy, any repugnancy % If not, in construing the policy, the intent of the parties is to be gathered from both the written and printed portions, and effect given to both, according to the ordinary rules of construing written contracts.

I am of the opinion that the judgment of the Supreme Court is right, and should be affirmed.

All the judges concurring,

Judgment affirmed.  