Simmonds v. Cockell (1920) All ER Rep.

162

ROCHE, J. –

 The plaintiff sues one of the underwriting members of Lloyd’s under a Lloyd’s policy of insurance against
burglary, housebreaking and theft, dated May 1, 1919.

 During the currency of the policy the premises were broken into, and about £475 worth of the plaintiff’s
goods were stolen.

 The action is brought to establish the liability of the defendant and the other underwriter of the policy.
The defence is a short one, and turns on one point only - not an easy one to decide.

Construction of Insurance Contract

 The policy contains the following clause: “Warranted that the premises are always occupied.” I have to
decide whether that warranty has been broken by the plaintiff.

 It is alleged that the warranty has been broken in this case, and that therefore the underwriters are not
liable.

 The facts are that on June 22 the premises were broken into. The plaintiff and his wife, who were the only
persons resident on the premises, were absent from the premises on the afternoon of the day of the
burglary.

 The plaintiff was away partly on business, and his wife spent the afternoon at a garden party and fete,
where she was joined later by the plaintiff, and they both spent the evening at the fete.

 During their absence the shop and premises were left unattended between 2.30 p.m. and 11.30 p.m.,
except for an interval about seven o’clock p.m. when the plaintiff himself returned to change his clothes.

 If the warranty means, as the defendant contends, that the premises are never to be left unattended, and
that there must be some continuous attendance on the premises, then there has undoubtedly been a
breach of the warranty for both the plaintiff and his wife were absent from the premises for some hours
on the day in question.

 But, in my judgment, that is not the meaning of the warranty. I think it means that the premises are to be
used, continuously and without interruption, for occupation, that is to say, as a residence, and not merely
as a lock-up shop which is left unoccupied after business hours. That is the construction I should put on
the words, and I am fortified in arriving at this conclusion by the judgment of Bray, J., in Winicofski v.
Army and Navy General Assurance Association, Ltd. [(1919) 88 J.K.B. 1171] and by the American decisions
cited by counsel for the plaintiff, most of which are collected in Mr. Macgilliavray’s most useful book on
Insurance Law, at p. 887.

If the language used is very ambiguous

 But the matter does not rest there, for if the warranty does not bear the meaning which I have given to it,
I should hold, that the language used is very ambiguous;

 and it is a well-known principle of insurance law and other matters, that if the language of a clause
drawn by a party himself for his own protection is ambiguous it must be construed against him, and if the
 words of a warranty in a policy are ambiguous they must be construed against the underwriter who has
inserted the warranty in it for his own protection.

 Therefore the defence, on the whole, fails. The only materiality which attached to the question whether
the plaintiff returned to the premises about seven o’clock is that it fixes the time when the burglary
happened, because the premises were all right then.

 It was contended for the defendant that if the warranty is to be construed in a way I suggest, it affords
very little protection to the underwriters. I do not agree.

 If the premises are used for residential as well as for business purposes, it is obvious that a thief would
never know at what moment the occupier might return from a temporary absence and disturb his
operations. It is that kind of occupation which this warranty requires and which has been secured. The
defendant has not stipulated for the continuous presence of some one in the premises, which he could
have done by providing that the premises were never to be left unattended. I therefore give judgment for
the plaintiff with costs. *

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