Brown v. Kings County Fire Insurance , 31 How. Pr. 508 ( 1865 )

By the court, Barnard, J.

The objection taken upon the

trial, that the certificate of the justice or notary did not accompany the preliminary loss of papers, was waived by the defendants’ failure to object in time. The papers served were not only received without objection, but, when the loss became payable, the refusal to pay was upon the specific ground that the defendant “ did not insure a ship chandler’s shop,” meaning that the risk had been increased, and upon this ground only. It it is too late, now, to take any other. The defendant makes this objection also, upon the trial, that the policy became «void by reason of the plaintiff placing to warm upon a stove, upon the premises, about five gallons of an inflammable compound, called ointment, by reason of which the fire was' occasioned. The policy covers “ stock of drugs, chemicals and other merchandise, hazardous and .extra hazardous.” The evidence clearly shows that it is usual for druggists to mix various kinds of ointment and to melt it on their stoves, as this was done, to put in boxes for sale and use. The insurers must be deemed to be acquainted with the business and to have included it in the risk (Harper agt. Albany Ins. Co. 3 Smith R. 194). The question of fact found, that the risk was not increased by the heating of this mixture beyond what is fairly contemplated by the policy and conditions, is fully supported by the evidence. In the absence of fraud, then, the insurance is against loss by fire. If the risk had not been increased within the spirit of the condition, so as to avoid the policy, then it will be no defense that the plaintiff might have been more careful in the management of a business which the policy-permitted him to carry on (Gates agt. Madison Co. Mutual Ins. Co. 1 Seld. R. 478). The letter of the plaintiff was properly admitted, the proof being furnished by plaintiff that it reached defendants’ company. It is true, the defendants’ officers deny this, but it must all go to the jury. If the jury believe plaintiff, the letter is evidence. The evidence of what, the defendants’ president would charge for a risk like the one in question was properly rejected. The policy is not to be construed by what the defendant would charge for permission to insure to do as plaintiff did. The question was, did the act done increase the risk beyond the fair intent of the policy ? It was proved directly by defendant that it did not increase the risk.

Judgment affirmed, with costs.