Spinner v. Concordia Mutual Fire Insurance , 264 Mich. 388 ( 1933 )

On plaintiff's appeal from judgment notwithstanding the verdict, we notice chiefly one of the several defenses presented, namely, that the policy of fire insurance sued upon was made void by increase of hazard.

The building insured was a barn. The contract provided in part:

"This company will not insure against or be responsible for property destroyed by fire caused by the use of stoves or other fire apparatus in barns or any other outbuildings * * * nor for loss occasioned by permitting smoking or the use of open lights in or about barns or other places liable to take fire. * * *

"This entire policy shall be void if the hazard be increased by any means within the control or knowledge of the insured."

Barn dances were held. Patrons smoked cigarettes in the barn. A wood burning stove was installed and used. An oil stove for cooking red hots was set up and operated. Gasoline lanterns were used. There were cracks in the barn floor and in the basement below the floor which was used as a barn were chaff and other accumulations common to barns. The fire started below the floor and during a dance.

The trial judge held increase of hazard under the policy and hence breach of the contract established as a matter of law.

The general provision last above quoted cannot be held as destroying the special provisions first above quoted. These special provisions deal with stoves or other fire apparatus, smoking, and the use of lights, and a breach of these conditions, or any of them, to be a defense, must be shown to have caused the fire, as provided by the contract. It was not shown what caused the fire. The remaining feature to come under the general provisions against increase of hazard is that dances were held in the barn. This alone, the said special matters being eliminated, is not sufficient to support the finding of increase of hazard as a matter of law.

The fact that plaintiff's building was used by a tenant does not render the ownership of plaintiff other than unconditional as required by the policy. 26 C. J. p. 182. The building was a barn and was largely used as such despite the fact that barn dances were held in it occasionally, and was within the risks defendant might insure under its charter.

Fraud in procuring the insurance is suggested, but this, if an issue, is one of fact and does not sustain judgment nonobstante veredicto. No other question is presented by assignment of error.

Judgment should be reversed, with costs, and remanded for judgment on the verdict.

McDONALD, C.J., and POTTER, J., concurred with CLARK, J.