Lyman v. State Mutual Fire Insurance , 96 Mass. 329 ( 1867 )

Gray, J.

Assuming that the defendants had a right to cancel the policy, it is very clear that their action did not amount to a cancellation. Neither the vote of January 1862, nor the circular of April 1862, was more than a notice to the plaintiff that in a certain event the defendants would cancel his policy; and there is no evidence that they ever did cancel it.

A more important question arises under the third condition of the policy. The defendants contend that by virtue of this condition any alteration of the building, whether increasing the risk or not, avoided the policy. The plaintiffs contend that no alteration which did not permanently increase the risk would have that effect. The court is of opinion that neither of these positions can be maintained.

This condition makes it essential, in order to avoid the policy, that “ the building shall be altered, enlarged, or appropriated to any other purposes than those herein mentioned, or the risk otherwise increased.” The words are not so arranged as to make the meaning perfectly clear; but taking them all together, there can be no doubt that they include nothing which does not increase the risk. If it had been intended that any alteration, or enlargement, or appropriation to new purposes, which did not increase the risk, should avoid the policy, the word “ otherwise” in the last clause above quoted, would have been superfluous. The insertion of that word shows that the previous part of the condition also relates to changes which increase the risk. The reasonable interpretation of the condition is to read it as if the words had been transposed thus: “ Whenever the risk shall be increased by altering or enlarging the building, or appropriating it to any other purposes than those herein mentioned, or otherwise.” The case is within the principle of Rice v. Tower, 1 Gray, 426, in which a policy which was to be void “ if the assured shall alter or enlarge a building so as to increase the risk, or appropriate it to other purposes than those mentioned in the application,” was held not to be avoided by an appropriation of the building to a new use which did not increase the risk. See also Stokes v. Cox, 1 Hurlst. & Norm. 533; reversing S. C. Ib. 320. Whether the risk was increased was a question for the jury. Curry v. Commonwealth Ins. Co. 10 Pick. 535. Rice v. Tower, 1 Gray, 426.

But although this condition is limited to acts which increase the risk, it is in other respects very sweeping, and includes every manner of increasing the risk, whether by alteration, enlargement, appropriation to new uses, or otherwise. We have no occasion to consider whether this policy would be avoided (as different policies have been held not to be, in cases cited for the plaintiffs,) by making ordinary repairs, without the consent of the insurers; or by a casual or gratuitous, though unauthorized use, for a single day or night, or a single experiment. The facts in this case show a deliberate and considerable alteration of the building, not incidental to the ordinary use of the property, made by the tenant with the knowledge of the assured, prolonged for three weeks, and, while it lasted, increasing the risk, as the jury have found. There is nothing in the words of this condition to warrant us in holding that an alteration which increased the risk for such a length of time did not avoid this policy, merely because the duration of the increase of risk would not be unlimited. On the contrary, one probable object of the condition requiring the written consent of the president of the company in case of increase of risk seems to us to have been to enable the ' insurers to charge an additional premium in such a case as this. 3 Kent Com. (6th ed.) 374. Worcester v. Worcester Ins. Co. 9 Gray, 27. Glen v. Lewis, 8 Exch. 618. If the risk was increased at the time of the fire, contrary to the terms of the policy, the insurers were not liable, even if the acts which increased the risk did not cause the fire. Merriam v. Middlesex Ins. Co. 21 Pick. 162.

The only remaining question is whether the opinions of witnesses, which were admitted to prove an increase of risk, were competent evidence; and upon consideration we are unanimously of opinion that they were not. The decision of this point, as presented by the report, requires no extended examination of authorities; for it is quite clear that no witness can be permitted to testify to his own individual opinion merely, upon the issue whether the risk was increased, when that depends upon facts which involve no peculiar science or information, but are within the common knowledge of men. Mulry v. Mohawk Valley Ins. Co. 5 Gray, 541. White v. Ballou, 8 Allen, 408. Durrell v. Bederly, Holt N. P. C. 283. Berthon v. Loughman, 2 Stark. R. 258. Campbell v. Rickards, 5 B. & Ad. 840. Hawes v. New England Ins. Co. 2 Curtis C. C. 230. 1 Arnould on Ins. 572. As the evidence admitted against the plaintiffs’ objection was of this character, and we cannot know how much the jury were influenced by it in finding that the risk was temporarily increased, their verdict must be set aside, and a

New trial ordered.