Smith v. German Insurance , 30 L.R.A. 368 ( 1895 )

Long, J.

On October 28, 1893, the defendant issued to the treasurer of Eaton county its policy of insurance, covering $3,000 on the Eaton county courthouse, for three years. The policy was the Michigan standard form, and contained the following conditions:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the hazard be increased by any means within the control or knowledge of the insured, or if mechanics be employed in building, altering, or repairing the within described premises for more than 15 days at any one time, or if * * * there be kept, used, or allowed on the above-described premises, benzine, * * * gasoline, * * * naphtha, * * * or other explosives.”

It appears that on October 12, 1893, some two weeks before this policy was issued, the board of supervisors provided by resolution for the appointment of a committee to repaint the courthouse. This committee, on June 1, 1894, entered into a written contract with S. H. Sleater to have such work performed. Sleater and his employés commenced this repainting three weeks and three days previous to the fire, and continued the work, with the exception of one or two days, up to that time. For the purpose of removing the old paint, preparatory to repainting, gasoline torches were used to blister or loosen it. The courthouse was a brick and stone structure, with metal roof and tower. The framework of the roof, tower, and cornice was wood, the tower and cornice being covered with galvanized iron, and the roof with tin. The iron work of the building, except the roof, had been previously painted and sanded to imitate stone, and this sanded paint, at the time the policy was issued, was peeling off; and it is claimed that, in order to make a good job of painting, it was necessary that it be scraped off the iron work.

Some contention is made on the part of the defendant that, during the time these torches were being used, the season was very dry; while, on the other hand, plaintiff’s testimony showed that from the 16th to the 24th of June of that year there was considerable rain, and that on the 28th it rained nearly all day. It does appear that by the 4th of July most of the paint had been removed from the cornice by the use of these torches, and that Mr. Horn, who had done most of the work on the cornice, had worked some portion of that day thereon, when, about half-past 5 in the afternoon, the courthouse was discovered to be on fire. The fire seems to have originated some 15 feet distant from where Mr. Horn last used his torch on that day. After the fire, the part of the cornice where he last worked was found to be intact.

Defendant contends that the torch had come in contact with some straw and other substance carried into the cornice by the birds, and that the iron work of the cornice in various places had become loosened, so that, by the use of the torch, the fire, penetrating through such crevices, communicated with the wood work. But we think this statement hardly borne out by the record; and Mr. Horn testifies that he- found only two places where the galvanized iron was clear off; that one of the little panels had come off, but he had passed over that, and that there was one other bad place on the west end, but he had not reached that when the fire occurred; that all the balance of the cornice was in good condition, and he found no place where the seams had opened. There is little contention, however, but that the fire was in some way communicated by the use of this torch. It also appears in the case that the gasoline used in these torches was carried into the tower of the courthouse in a five-gallon can; and, in order to supply the torches, the men passed over the roof of the building into the tower, and filled them from the can; and, up to the time of the fire, Mr. Horn had used from one-half a gallon to a gallon, per day, and the others something more than that. The torches were so constructed that, by pumping in air, a gas would be generated, which, if ignited, would create a very hot flame. As some of the witnesses express it, it was upon the same principle as the blow-pump used by jewelers in welding their jewelry.

Replying to the letter of plaintiff, inclosing proofs of loss, the defendant, under date of October 1, 1894, wrote as follows:

“We have to say that we have given the matter prompt attention, and thoroughly investigated as to the origin of this fire, and as to the condition of the property at the time of the fire, and find that there was employed at the time of the fire, and previous thereto, one or more men who were using gasoline torches for the purpose of burning off the paint on the cornices and other portions of the courthouse, and there was stored in the courthouse gasoline for this use and purpose in considerable quantities, and in such quantities as would be a large increase of the hazard; and, further, the use of gasoline in gasoline-burning torches for burning off paint is a very great increase of hazard, so much so that it is a violation of the conditions of the contract; and, with the information we now have as to the use of this gasoline and its storage in the building, — all within the knowledge and control of yourself, as treasurer, and of the county commissioners of your county, having charge of the county property,— this company must conclude that such act on the part of the proper officials of Eaton county was a voidance of the contract, and that by this serious increase of hazard the policy was voided before the fire. Hence we call yóur attention to these facts to explain to you the position which this company would be obliged to take in this case. If, as we understand from the reports we have received, .these conditions existed, clearly the policy was void and of no effect, and there could be no liability under it after the use and storage of gasoline in and on the premises. And, further, that you may not be misled as to the position of this company, we again repeat, if these conditions as to the use and storage of gasoline existed, the policy was absolutely void, and there is no liability thereunder.”

Upon the trial before a jury in Eaton county, the plaintiff had verdict and judgment for the amount of the policy, with interest.

The first objection to the proceedings relates to the trial of the cause in Eaton county. Before the trial came on, the defendant moved for a change of venue, based upon the affidavit of one of its counsel, which states—

“That in each of said causes [there were four suits pending upon separate insurance policies] there will be an issue of fact as well as issue of law to be determined, in the opinion and judgment of deponent, and the deponent has thoroughly examined into said cases, and believes he understands the issue involved in said causes. Deponent further says that, in his judgment, it will be impossible to get an impartial jury to try said causes, or either of them, in said county, from the fact that the jurymen, being taxpayers, would be directly and financially interested in having the plaintiff recover judgment.”

This motion was overruled. At the commencement of the trial, before the jury were sworn, counsel for defendant, in order to again raise the question, challenged each juror on the ground that he was a taxpayer of the county, and therefore incompetent to sit in the case. These challenges were overruled.

Section 7555, 2 How. Stat., provides that the list of jurymen shall he taken from the assessment roll, and each regular juror was presumably a taxpayer of that county; but section 466, 1 How. Stat., provides:

“On the trial of every action in which a county shall be interested, the electors and inhabitants of such county shall be competent witnesses and jurors.”

The contention is that this act is unconstitutional, as it seeks to deprive a party of the right to a trial by an impartial jury. We think there is no force in this contention. It is competent for the legislature to provide that, where the interest of a person is merely that of a taxpayer of a municipal corporation, it shall constitute no disqualification of him as a juror, judge, or commissioner in a case where the corporation is a party. As was said in City of Minneapolis v. Wilkin, 30 Minn. 142:

“This does not infringe; upon the constitutional right of a party to an impartial tribunal to hear his cause. Public policy and the necessities of the case require that this should be so. The ground upon which such ruling is usually placed is that such an interest is so remote, indirect, and slight that it may be fairly supposed to be incapable of affecting the judgment or influencing the conduct.”

This same rule is laid down by Judge Cooley in his work on Constitutional Limitations (6th Ed., p. 508).

The principal contention arises over the charge of the court, which is as follows:

“Ho. 1. I instruct you that there is no foundation for the claim in this cause on the part of the defendant that the policy in question was rendered void by reason of mechanics having been employed in repairing the building for more than 15 days without any agreement indorsed upon the policy or added thereto permitting the same. The evidence clearly shows that only painters were employed in repainting the building. Painters are not ‘mechanics’ in the sense of this term as used in this policy; and neither the painters employed nor the work they did is embraced in this provision. And I further instruct you that, were such employés and their work comprehended within the meaning of this provision, still the defendant has waived any breach thereof, if any ever occurred, and is now estopped from raising this question. You will, therefore, not consider this objection as constituting any defense whatever to this action.

“No. 2. You are further instructed that the third objection of defendant — that is, that gasoline or naphtha was stored in the courthouse in violation of the provisions of the policy prohibiting the keeping, using, or allowing on the premises of benzine, gasoline, naphtha, or other explosives — is also without force or foundation. This condition in the policy must be understood as prohibiting only the habitual keeping, using, or allowing of any of these articles on the premises, and not the occasional introduction thereof for some temporary purpose connected with their occupation, such as making ordinary or necessary repairs, and the like. I therefore charge you that there is no evidence in this cause tending to show a violation of this condition, and hence a recovery by the plaintiff cannot be defeated by reason of this objection.

“No. 3. As to whether there has been an increase of hazard or violation of the terms of the policy within the meaning of its terms as understood and contemplated by the parties, I instruct you that, in determining whether or not there has been an increase of risk, it is essential to ascertain wrhat the parties must be presumed to have contemplated when the insurance was made.- And this involves the consideration of the usages and incidents of the risk, because where any change is warranted by the usage or usual incidents of the risk, although it in fact increased the risk, it does not come within the prohibition, because it is presumed to have been contemplated by the parties.

“No. 4. The well-settled doctrine seems to be that that which is necessary for the protection of the property or its preservation, such as ordinary repairs, by way of painting or otherwise, or that which is usual or incident to it for the purpose for which it is employed when insured, must be regarded as within the contemplation of the parties, and excepted from the operation of any stipulation apparently to the contrary.

“No. 5. You are further instructed that the right to repair buildings is incident to the ownership and use of the property, and alterations which do not increase the risk under an insurance policy, as well as all ordinary repairs, may be made without affecting the validity of the policy. And hence, although, in making any such repairs, hazardous articles are introduced into the building, such as gasoline, oils, turpentine, paints, etc., the insurer is not relieved from liability if such articles are necessary incidents to the repairs in progress.

“No. 6. Both parties to a contract for insurance must be presumed to expect that the property will be preserved and kept in proper condition by making repairs upon it; and although the making of ordinary or necessary repairs in a reasonable way may sometimes increase the risk more’or less while the work is going on, or involve the use of articles whose use in a business carried on in the building is prohibited by the policy, still the insurer would not be relieved from liability by reason of such repairs or such temporary increase of risk.

“No. 7. You are further instructed that, in the absence of an express stipulation to that effect, a contract of insurance should not be held to forbid the making of ordinary repairs in a reasonably safe way, and provisions like those we are now considering in the policy in question should not be deemed to apply to an increase of risk caused by reason of any such repairs, or to the use of an article necessary therefor or for the preservation of the property. And I instruct you that if it was reasonably necessary to remove the old paint from the building, as shown in this cause, for the purpose of properly repairing it, and that the use of the gasoline burner was reasonable and proper for that purpose, having reference to the nature of the building, the danger of fire, as well as to other considerations properly connected with the transaction, the policy would not be rendered void by reason of such use, and such use would constitute no defense to this action.”

The question first presented by the charge is whether the painters employed were “mechanics” within the meaning of the policy, so that the insured was bound to obtain the indorsement of the company upon the policy permitting the repairs, inasmuch as these workmen were engaged for more than 15 days. Plaintiff contends (1) that they were not such mechanics; (2) that, if they were, the defendant waived any breach of that condition by its letter of October 1, 1894.

Webster defines the word “mechanic” as “one skilled or employed in shaping and uniting materials, as wood, metal, etc., into any kind of structure, machine, or other object requiring -the use of tools or instruments.” The American Encyclopedic Dictionary defines the term as “one who is employed or skilled in the construction of materials, as wood, metal, etc., into any kind of structure or machine; one who is skilled in the use of tools or instruments; one who follows a mechanical trade for his living.” In Anderson’s Law Dictionary the term is defined as “a workman employed in shaping and uniting materials, such as wood or metal, into some kind of structure, machine, or other object requiring the use of tools.” In Crabb’s English Synonymes the distinction between a mechanic and a painter is drawn as follows: “The mechanic is that species of artisan who works at arts purely mechanical, in distinction from those which contribute to the completion and embellishment of any objects. On this ground a shoemaker is a mechanic, but a common painter is a simple artisan.” It is apparent that the common acceptation of the term “mechanic” does not include painters, and that painting was not intended by the terms of this policy to be included in those repairs which required the assent of the company to be indorsed upon the policy. To make the case more certain upon this point, when Mr. Row, who was called by the defendant as an expert upon insurance matters, was cross-examined, he testified: “The company I represent issues a permit for repairs, general repairs. Never was called upon to issue a permit for painting alone. We never regarded painting alone as the kind of repairs that were contemplated by the policy.”

We think the court was also right in stating to the jury that, if the painters were included within the term “mechanics” as used in the policy, clearly there was a waiver of any such claim by the letter of October 1,1894. In that letter the company admits thoroughly investigating the loss, the origin of the fire, and the attendant circumstances, and undertakes to state definitely its reasons for denying liability on the policy. It is apparent that the ground, and the only ground, upon which all liability was denied, was the use and storage of gasoline, though in the former part of the letter mention was made that men had been employed to burn off this paint. Good faith required that the company should apprise the plaintiff fully of its position; and, failing to do this, it estops itself from asserting any defense other than that brought to the notice of plaintiff. Towle v. Insurance Co., 91 Mich. 227, and cases there cited. The defendant having specifically called the attention of the insured to its'objections to paying the policy, reiterating the claim made, it limited its complaint to the use and storage of gasoline. No more definite statement could have been made, and it operated as a waiver of other causes of complaint and defenses to the action.

The next objection is to the charge of the court upon . the question of the use and storage of gasoline upon the premises. In the notice attached to the plea, the defendant sets out the manner in which the policy was voided under three heads; the first referring to the increased hazard to the property by the use of gasoline torches; the second referring to the employment of mechanics for more than 15 days without the written assent of the company. The third matter of defense is set up as follows:

“That gasoline or naphtha was stored in the courthouse building covered by said policy at the time of said fire, and had been continuously for several days immediately preceding said fire, and that no agreement was indorsed on said policy or added thereto permitting such storage; and by reason thereof, within the true intent and meaning of the provision of said policy, said policy became null and void.”

The defense, then, set up by this notice, relates to the storage of gasoline contrary to the terms of the policy, and not to the use made of it by the workmen in removing the paint. The court construed this condition to mean only the habitual keeping; using, or allowing of any of these articles on the premises, and not the occasional introduction thereof for some temporary purpose connected with their occupation, such as making ordinary or necessary repairs, and the like. While it is apparent that, under the notice, the defense upon that branch of the case was limited to “the storage within the building, yet the inquiry need not bé so restricted. The question is fairly presented by the charge whether the storing for the purpose for which the gasoline was used was a violation of the terms of the policy; and the court, we think, properly charged the jury on that point.

In Dobson v. Sotheby, Moody & M. 90, the terms of the policy required that no fire should be kept in buildings on which the rate of insurance in that case specified was paid. A tar barrel had been taken into the barn which had been insured against fire, for the purpose of repairing the building by tarring it. No fire was ordinarily kept or made there, but a fire was lighted inside to boil the tar; and, by the negligence of a servant, the building took fire, and was consumed. The insured recovered. Lord Tenterden said that the condition in the policy must be understood as forbidding only the habitual use of fire, and not its occasional introduction, as in that case, for a temporary purpose connected with the occupation of the premises.

In O’Niel v. Insurance Co., 3 N. Y. 122, the policy provided that—

“The true intent and meaning of the parties is that in ease the above-mentioned buildings, or either of them, shall, at any time after the making and during the time this policy would otherwise continue in force, be appropriated, applied, or used to or for the purpose of carrying on or exercising therein any trade, business, or vocation denominated ‘hazardous’ or ‘extra hazardous,’ or specified in the memorandum of the special rates in the proposals annexed to this policy, or for the purpose of storing therein any of the articles, goods, or merchandise in the same conditions denominated ‘hazardous’ or ‘extra hazardous,’ or included in the special rates, then * * * these presents shall cease and be of no force or effect.”

In the conditions annexed to the policy, oil and turpentine were denominated “hazardous” goods, and spirits of turpentine “extra hazardous;” and bouse building or repairing was included within the memorandum of “Special Rates of Premium.” In a suit upon the policy it was held that painting the inside of this house was not an application of the house to the purpose of carrying on the trade of house repairing, and that the oil and turpentine brought into the house for the purpose of painting it were not “stored” therein within the meaning of the clause of the policy; and the court said:

“The object of that clause was to prevent the house from being used for the ordinary deposit of hazardous goods, and not for their occasional introduction for a temporary purpose necessary to make the house tenantable as a dwelling.”

In New York Equitable Ins. Co. v. Langdon, 6 Wend. 623, 628, under a somewhat similar clause, it was said:

“The only question, then, is whether the keeping of oil and spirituous liquors in the store, under the circumstances disclosed in the case, was appropriating or using the building for the purpose of ‘storing’ those articles, within the meaning of the policy. Everything that was kept either in the store or cellar was kept for the purpose of being retailed. The smaller vessels in the store were replenished from the larger ones in the cellar, which consisted at the time of the fire of' one cask of oil, one barrel of rum, one cask of Jamaica spirits, and one pipe of gin, from all of which more or less had been drawn for the use of the store. It appears to me that the word ‘storing’ was used by the parties in this case in the sense contended for by the plaintiff, viz., a keeping for safe custody, to be delivered out in the same condition, substantially, as when received, and applies only where the storing or safe-keeping is the sole or principal object of the deposit, and not where it is merely incidental, and the keeping is only for the purpose of consumption. If I send a cask of wine to a warehouse to be kept for me, that is a storing of it; but, if I put it into my cellar or my garret to be drawn off and drank, I apprehend the term would not be considered as applying.”

Anderson’s Law Dictionary defines the term “to store” as to keep merchandise for safe custody, to be delivered in the same condition as when received.

In Mears v. Insurance Co., 92 Pa. St. 15, a policy on a distillery forbade the insured to keep or have on the premises petroleum, naphtha, benzine, benzole, gasoline, benzine-varnish, etc., or to keep, have, or use camphine, spirit gas, or any burning fluid or chemical oils, etc. In an action on the policy it was held that this did not prohibit the temporary taking of benzine on the premises for the cleaning of machinery, and the use of the same therefor. See, also, Faust v. Insurance Co., 91 Wis. 158; Lancaster Silver-Plate Co. v. Insurance Co., 170 Pa. St. 151.

We think it is clear that there was not such a storing of gasoline within the building as to avoid the policy, and the court was correct in its charge.

Defendant’s counsel insist, further, that the úse made of this gasoline in burning off the paint was a violation of the condition of the policy which provides: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if .the hazard be increased by any means within the control or knowledge of the insured.” Considerable testimony was introduced tending strongly to show that it was the custom of painters, and had been for many years prior to the issuing of the policy in suit, to use these torches in removing paint; and the court submitted that-question fairly to the jury.

In Wood on Fire Insurance (2d Ed., § 253) the rule is stated:

“In determining as to whether or not there has been an increase of risk, it is essential to ascertain what the parties must be presumed to have contemplated when the insurance was made, and this involves a consideration of the usages and incidents of the risk, because, if the change was one warranted by the usages or usual incidents of the risk, although it in fact increased the risk, it does not come within the prohibition, because it is presumed to have been contemplated by the parties.”

In First Congregational Church v. Insurance Co., 158 Mass. 475, and also reported in 19 L. R. A. 587, it appeared that the church edifice was . being repainted on the outside. It was built of wood, and’ had been painted and sanded. The paint had peeled and curled at the time of the fire, and for some time prior thereto the old paint was being taken off by the use of naphtha in torches similar to the ones in the present suit. The building was destroyed by fire after the workmen had been thus employed for nearly a month, and when the work was nearly completed. The policy provided as follows:

“This policy shall be void if, * * * without the assent in writing or in print of the company, * * * the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured, be so altered as to cause an increase of such risk; or if camphine, benzine, naphtha, or other chemical oils or burning fluids shall be kept or used by the insured on the premises insured, except that what is known as refined petroleum, kerosene, or coal oil may be used for lighting,” etc.

The court said:

“On the undisputed facts as stated in the bill of exceptions, the only ground on which the plaintiff could fairly ask to present a question to the jury is upon its contention that the use of the naphtha and the change in the conditions affecting the risk occurred through making ordinary repairs in a reasonable and proper way, and that in the provisions quoted from the policy there is an implied exception of what- is done in making ordinary repairs. It is generally held that such provisions are not intended to prevent the making of necessary repairs, and the use of such means as are reasonably required for that purpose.”

The court further said:

“The making of ordinary repairs in a reasonable way may sometimes increase the risk more or less while the work is going on, or involve the use of an article whose use in a business carried on in the building is prohibited by the policy. In the absence of an express stipulation to that effect, a contract of insurance should not be held to forbid the making of ordinary repairs in a reasonably safe way, and provisions like these we are considering should not be deemed to apply to an increase of risk or to a use of an article necessary for the preservation of the property. We are therefore of opinion that if the use of naphtha at the time and in the manner in which it was used was reasonable and proper in the repair of the building, having reference to the danger of fire as well as to other considerations, it would not render the policy, void.”

Borne question, is raised in reference to the admission and rejection of the testimony of witnesses, which we have carefully examined, but find no error in the record. The only question of fact in the case was fairly submitted to the jury, and we think the charge of the court contained a correct statement of the principles of law involved.

The judgment will be affirmed.

McGrath, O. J., and Montgomery, J., concurred with Long, J. Hooker, J., took no part in the decision.