LaForce v. Williams City Fire Insurance , 43 Mo. App. 518 ( 1891 )

Smith, P. J.

I. The first ground of the defendant’ s appeal is that no immediate notice of the loss was given by the plaintiff to the defendant. The policy upon which this action is founded provides, amongst other things, that “where afire has occurred injuring the property herein described the assured shall * * * give immediate notice of the loss in writing to this company.” The notice was given not until fourteen days after the loss. The object, no doubt, of this general' notice, as distinguished from the particular notice. required by the terms of the policy to be given later on, was to enable the defendant to institute proper inquiry, and the giving of it within a reasonable time was necessary to satisfy the requirement of the policy in that respect. Whitehurst v. Ins. Co., 7 Jones’ Law (N. C.) 433; Edwards v. Ins. Co., 75 Pa. St. 378. The giving of the.notice fourteen days after the fire, unaccompanied by any fact or circumstance excusing the delay would, no doubt, be properly held as a matter of law not to be the immediate notice required by the conditions of the policy. However essential this preliminary notice may be, it seems, according to the authorities, that its timeliness may be waived. In Flanders on Insurance, pages 541, 542, that writer says : “ The insurer may waive the whole or, in part, any of the ordinary 'proofs. Their requirement is a formal condition introduced solely for his benefit, and their waiver strikes the condition out of the contract. The waiver need not be express. It may be inferred from the act of the insurers which evidence a recognition of liability, or from their denial of obligation exclusively for other reasons. That if the refusal to pay the loss is put upon the grounds other than the insufficiency or defectiveness of the notice or proofs furnished, the insurers will be held to have waived objections of that character. The refusal to recognize the existence of any claim, or a general refusal to pay, renders the delivery of notice and proofs a useless ceremony, and is treated as waiving a strict compliance with the conditions as to prelim inary. notice and proofs in respect to form and time;” And this statement of the law finds recognition and approval in the adjudged cases: Ins. Co. v. Sheets & Co., 26 Gratt. 854; Ins. Co. v. Deford, 38 Md. 382; Clark v. Ins. Co., 6 Cush. 342; Taylor v. Ins. Co., 9 How. (U. S. R.) 390; Phillips v. Ins. Co., 14 Mo. 167; Rice v. Railroad, 63 Mo. 34; Baile v. Ins. Co., 73 Mo. 387; Reppstein v. Ins. Co., 57 Mo. 86; McComas v. Ins. Co., 56 Mo. 573.

The plaintiff’s notice to defendant of the loss was in the form of a letter addressed to defendant with which were inclosed proofs of loss. The defendant in answering the letter and acknowledging the receipt of the proofs stated that, “ After investigating the facts fully we find no fire ensued to the damage of the property covered in your policy.” If there was no fire there was no liability, and so the denial of the fire was a denial of the liability. The denial of the responsibility is not on account of the -want of .timeliness of the notice of the loss nor of any defect or insufficiency therein or in the proofs of loss. But the loss was put upon the sole, independent and distinct ground that, there had been no fire, and, therefore, there was no liability to the plaintiff. Conceding, as we may, that the proof furnished in this case in respect to the delivery of the preliminary notice of the loss was defective, we are all of the opinion that the defendant has waived the right to object to it on that ground.

II. The second ground of the ‘defendant’s demurrer to the plaintiff’s evidence is that it showed conclusively that the gasoline had been kept and used on and in the premises in violation of the conditions of the policy. The policy provides that if gasoline should be kept, stored or used in or on the premises described in the policy, the latter should be void. The premises described in the policy is “his two-story, brick dwelling-house with addition, occupied for family residence and situated on the southwest corner of Wyandotte a,nd Eleventh streets, Kansas City, Missouri.” The house is all that is described, and which is no doubt meant by the word, premises, as used in the .conditions of the policy which forbids gasoline to be kept, stored or used “in or on the premises herein, described.” Under the evidence in. this case we are left to determine the boundaries of the premises alone.from the description contained in the policy. Nothing is perceived in any provision of the policy which would justify us in concluding that the boundaries of the1511 premises” were intended to be more extensive than those of the house. If there is a cloubt in this respect that doubt must be resolved in favor of the assured. 1 Wood on Fire Ins. 60. A contract drawn by the insurer, who makes his own terms and imposes his own conditions, will not be tolerated as a snare to the unwary, and if the words employed of themselves, or in connection with other language used.in the instrument or in reference to the subject-matter to which they relate are susceptible of the interpretation given them by the assured, although in fact intended otherwise by the insurer, the policy will be construed in favor of the assured. Hoffman v. Ins. Co., 32 N. Y. 405; Reynolds v. Ins. Co., 47 N. Y. 597. The language of the policy is the language of the defendant, and should be construed most strongly against it. 1 Wood on Fire Insurance [2 Ed.] sec. 60 ; May on Insurance [2 Ed.] sec. 175. If, as the evidence conclusively shows, the can of gasoline stood in.the yard ten or twelve feet from the house then it is plain enough that it was not kept stored or used on or in the premises within the meaning of the terms employed in the prohibitory clause. The policy covers no such case.

But the uncontradicted evidence is that the' plaintiff ’ s tenant or his servants did occasionally, how often it does not appear, introduce gasoline in small quantities into the house, for the purpose of destroying vermin, with which the kitchen was at times infested, and also for cleaning clothes, etc. Was this such ah use of gasoline as would render the policy inoperative % The rule is that the use of a prohibited article which will forfeit a policy must be an habitual use for the ordinary purposes to which such article is usually put and not an occasional introduction and use for a temporary and extraordinary purpose connected with the occupation of the premises. 1 Wood on Fire Insurance [ 2 Ed.] sec. 84 ; Moay on Fire Ins. [ 2 Ed.] sec. 241; Ins. Co. v. Simmons, 30 Pa. St. 302; Williams v. Ins. Co., 54 N. Y. 572; Mears v. Ins. Co., 92 Pt. St. 20. In Williams v. Ins. Co., 54 N. Y. 569, the plaintiff kept a small jug of crude petroleum in his room for occasional use in anointing his person, and it was alleged that this was a violation of a provision in a policy against storing petroleum‘upon the premises insured. The court said the petroleum was not stored within the meaning of the policy. It was not enough that the petroleum was upon the premises ; the premises must haw teen used and appropriated for storing it. In Ins. Co. v. Langdon, 6 Wend. 627, it was said by Judge Sutherland : “It appears tome that the word ‘storing’ was used by the parties in this case in the sense contended for by plaintiff, viz., a keeping for safe custody tobe delivered out in the same condition substantially, as when received, and appears only' when the storing or safe keeping is the sole or principal object of the' deposit, and not when it is merely incidental and the keeping is only for the pzorpose of conszomption.” In O’Neil v. Ins. Co., 3 Comstock (N. Y.) 122, it was held that oil and turpentine brought into a house for the purpose of painting it were not stored therein within the meaning of a. clause in the policy prohibiting the storing of such articles, where a policy contained a stipulation that if the building insured should be used for storing therein hazardous or extra hazardous goods, the policy should bé of no effect. Among the memorandum articles classed as hazardous were oils and spirituous liquors. These articles had been kept in quantity in the cellar of the building, and from the casks there stored smaller vessels had been replenished for- the retail trade. Such use, keeping or storage was held not to be a violation of the conditions. So it was held under a similar policy that the keeping of spirituous liquors in the building, in quantity sufficient for the boarders in the house, was not a breach of the condition So, when cotton in bales was among the articles enumerated hazardous, keeping a sufficient quantity for sale was ruled not to forfeit the policy upon a stock in a store. So having upon the premises the prohibited articles for the purpose of making repairs, as oil and spirits of turpentine for painting, or tar burned in the building for tarring it, does not avoid the policy. So it was held that a policy which expressly prohibited camphene or friction matches from being deposited, used, kept or sold in a building, etc., was not violated by a casual use of caniphene, or friction matches. Ins. Co. v. Simmons, 30 Pa. St. 299. In Hynds v. Ins. Co., 11 N. Y. 554, it was held that a condition in a policy, against using the premises insured for storing or keeping, amongst other things, flax, was not violated by the fact that a small quantity of flax happened to be left on the premises. In Liggett v. Ins. Co., 10 Rich Law (S. C.) 202, the insurance was on a “stock of goods and merchandise, ” with a stipulation that if the premises be appropriated, applied or used for the purposes of storing or keeping therein “ oil and cotton” the policy should be of no effect during such use. A barrel of oil with bunches of cotton near it had been kept in the back part of the store for a short time previous to the fire. Itu was held that the case was not covered by the policy, and, if it had been, it should have been construed to forbid the appropriation or chief use of the building for any of the prohibited purposes, and not the incidental keeping of small quantities of prohibited articles for retail along with the general stock of goods.

None of the cases cited by the defendant to which we have had access in any manner impugn the correctness ‘of the rulings in the cases to which reference has been made by us. According to these authorities it is quite obvious that the occasional introduction into the house of plaintiff of small quantities of gasoline for the purpose of destroying vermin or cleaning clothes was not, in a commercial or legal sense, such an habitual use thereof “on or in the premises” as was forbidden by the prohibitory clause of tho policy. We think that in any view, which may be taken of the evidence adduced by the plaintiff, that at the date of the fire the policy was alive and in force, and that therefore the trial court did not error in refusing the defendant’s instruction, which was in the nature of a demurrer.

III. The appealing defendant’calls in question the correctness of the first instruction for the plaintiff on the double ground, first, that there was no' evidence that the gasoline was used without plaintiff’s knowledge or consent, and, second, if there was such evidence upon which to base the instruction, it is erroneous because the use of gasoline was absolutely prohibited with or without plaintiff’s knowledge. It is now the well-established rule of law that a violation of any of ’ the prohibitions of a policy by the tenant of the assured is a violation by the assured himself. Ins. Co. v. Guenther, 16 U. S. 113; Kelly v. Ins. Co., 97 Mass. 284; Deihl v. Ins. Co., 58 Pa. St. 443. The last two cases cited seem to encroach upon the older cases of Sanford v. Ins. Co., 12 Cush. 541; Ins. Co. v. Simmons, 30 Pa. St. 299, but whether this is so or not the rule, as we have stated i,t to be, is, as we think, supported by the very highest authority, and, besides being consonant with both reason and public policy, should be followed by us. Whether the witness, Sarah Evans, carried the gasoline into the house with or without the knowledge or consent of the plaintiff was wholly immaterial. The jury was .required by this instruction to find a fact which was not essential to the plaintiff’s right of recovery. If the jury found the other facts required by the instruction, the verdict should have been for the plaintiff whether the element of knowledge or consent was or was not found by it to have existed at the time the witness carried the gasoline in the house. The finding of this fact by the jury in no way prejudiced the defendant, and constitutes no just ground for complaint.

Nor can the other objection to the instruction that the policy absolutely prohibited the use of gasoline in the house be sustained. Under the authorities which we have referred to, the use of gasoline was not under the conditions of the policy absolutely prohibited. The use to be within the prohibition of the policy must be an habitual use as distinguished from an incidental or occasional use. Except as to the matter of knowledge and consent the instruction according to our interpretation of the terms of the policy was correct enough in its theory.

IV. The defendant has lodged these objections against the plaintiff’s second instruction : First. That it directs a verdict for plaintiff if the jury find the gasoline was used without plaintiff’s knowledge or consent, and, second, that it “ignores the fact that gasoline had been habitually used on the premises and virtually directs the jury to find for the plaintiff if the use of gasoline, in the way it was used *on that occasion, was the cause of the fire and explosion.” As to the first objection we may remark that what was said in relation to ‘ ‘ knowledge or consent ’ ’ of plaintiff in connection with plaintiff ’ s first instruction is applicable here, and need not be repeated. We may supplement what was there said • with the further observation that, if the plaintiff himself instead of Sarah Evans had carried the gasoline into the kitchen under the circumstances outlined to the jury in the instructions of the plaintiff, in such case he would have been entitled to a verdict.

As to the second objection we may say that we do not think the plaintiff’s evidence established the fact that gasoline had been habitually used on the premises. In this case there is no room for question concerning a series of causes, as whether primary or secondary, proximate or remote; for the agent.is one and the same throughout, namely, fire. At each stage it was the ' action of fire. The agent was fire, though it acted in different ways upon the different successive subjects of its action, beginning with the match and terminating with the plaintiff’s house.

It is no sufficient answer to say that some of the phenomena produced were in the form of an explosion. All the effects whatever they- may be in form are the natural results of the combustion of.- combustible substance ; and, as the combustion- is the action of fire, this must be held to be the proximate and legal cause of all damages done the premises of the plaintiff. There was a fire within the policy which preceded the explosion, and it logically results that the insurer is liable to the assured for the damages done by both fire and explosion. This statement of the law is well supported by the authorities. 1 Wood on Fire Ins. [2 Ed.] sec. 104; May on Insurance [2 Ed.J sec. 413; Scripture v. Ins. Co., 10 Cush. 356; Washburn v. Ins. Co., 9 Ins. Law Jour. 68, 424, 761. The hypothesis of the plaintiff’s second instruction it will be seen upon examination is quite unexceptionable.

Y. The defendant’s instructions were all properly refused. All of them except the fifth proceed upon the erroneous assumption that the occasional or casual introduction of gasoline on the plaintiff’s premises in a quantity however small, for any purpose whatever, is prohibited by the terms of the policy.

The motion that the use must be habitual or at least' something more than occasional or incidental is not countenanced.

The defendant’s fifth instruction is obnoxious to the objection that it submits .a question of law for the determination of the jury. It was for the court, and not for the jury, to say upon the undisputed evidence in the case whether the use of the gasoline was such as avoided the policy. If the facts were disputed it would have been proper for the court to have indicated the essential facts constituting an use prohibited by the policy, and to have left it to the jury to say whether such facts were established by the evidence. But to leave it, as the instruction did, to the jury to determine both law and fact was highly improper.

It necessarily follows from what has been said that the judgment will be affirmed, which is so ordered.

All concur.