Luce v. Dorchester Mutual Fire Insurance , 110 Mass. 361 ( 1872 )

Colt, J.

The building insured by the policy in suit is described as the plaintiff’s “ one story frame dwelling-house, occupied by tenants, situate on the south side of Main Street.” The policy by its terms is declared to be avoided by any increase of the risk by the act or with the knowledge or consent of the assured, whether by altering or enlarging the building, by appropriating it to any other purpose than that mentioned, or in any other manner; and the question submitted to the jury was, whether the act of the plaintiff in boarding up the windows and voluntarily permitting the building to remain unoccupied for several months before the fire increased the risk.

When this case was before us at a previous stage, it was held that the testimony of witnesses, having the requisite knowledge and experience, that it was the custom of insurance companies generally to charge extra premiums upon dwelling-houses intended or known to be unoccupied, was competent, evidence of this description having been rejected at the first trial. The direct question whether such change in the occupation of a dwelling-house increased its liability to be destroyed or injured by fire was at the same time held to be a subject within common knowledge upon which the opinions of witnesses were inadmissible. 105 Mass. 297.

The general instructions which were given to the jury at the last trial were not objected to, and the only question now is whether the specific instruction asked should have been given.

Several witnesses having experience in insurance matters were (..filed by the defendants, who testified that insurance companies generally charged additional premiums upon dwelling-houses known or intended to be unoccupied. On cross-examination, some of them stated that the risk on occupied houses would vary very much with the different kinds of tenants, depending on the moral character, careful or careless habits of the occupant, number and age of his family, or the hazardous nature of the articles used by them in the house, and added that some tenants were worse risks than no tenants at all.

This testimony we think had a direct tendency, unexplained, to mislead the jury on the question whether there had been an increase of risk within the true meaning of the policy. It was, indeed, mere matter of opinion, and as such not competent in support of the plaintiff’s case, but it was in reply to the plaintiff’s cross-examination, and being in the case and having a direct bearing on the issue, its effect should have been qualified by the instructions asked.

It is clear that some tenants are worse than none, and that the insured who is himself without misconduct may recover a loss occasioned by the vicious or careless conduct of his tenant, when the actual risk of the same tenement unoccupied would have been less than with such a tenant. But when a comparison is to be made for the purpose of ascertaining whether there is any difference in the risk of loss by fire between occupied and unoccupied dwellings, the risk which attaches to the former, and which the parties by their contract must have contemplated, is to be measured by the average and ordinary character of tenants, not by exceptional and extreme cases, where, from the character of the particular occupant, the actual risk may be largely increased. It is the ordinary dangers to which each class is exposed which must determine the question whether, within the policy, the risk is increased. Merriam v. Middlesex Ins. Co. 21 Pick. 162.

The instructions asked for were in conformity with these principles, and as they were refused without any equivalent instructions appearing to have been given, the

Exceptions must be sustained.