Seth Padelford v. Prov. Mutual Fire Ins. Co. , 3 R.I. 102 ( 1855 )

Staples, C. J.

— The execution of the policy and the destruction of the insured building being shown, the defendants are prima facie liable, the preliminary notice and demand on them being admitted or proved. If they allege that the policy has been rendered void by reason of any alteration made in the building by the act of the proprietor, whereby the company is exposed to greater risk or hazard than they were in at the time of the insurance, the burden is on them to show it. Under the 23d section, of the charter of this company, such an alteration, so made, does avoid the policy. It must be shown to be an alteration increasing the risk, and one for which a higher rate of premium would have been demanded had it existed at the time the policy was executed. In this case that was admitted to be the nature of the alteration made. It must also be by the act of the proprietor. A tenant is not the proprietor within the meaning of that section. It refers to the insured owner, and it must be his act, one that he does himself, or authorises to be done, or one which he adopts as his before any loss accrues. The terms of this section, “ act of the proprietors,” implies all this, and are much more restricted than the words used in the policies referred to in the cases cited by the defendants. In them the policies were to be avoided by any alteration increasing the risk, made “ within the control ” of the assured. Under such a policy the assured may be perfectly passive. The avoidance of the policy depends on no act of his. He maybe entirely ignorant of the alteration, but if it be one which at the time of making the policy he could control, by parting with the control, his policy is avoided by any act increasing the risk.

Whenever it is alleged, as in this case, that the proprietor authorized the alteration by parol, the jury are properly left to inquire as to the extent of the authority given. In doing this, they ought to look at all the circumstances surrounding the parties at the time the authority was given, and particularly as to what kind of alterations the authority related, whether proper or within the policy, and such as increased the risk, and whether the authority was wholly unlimited as to the kind and nature of repairs. They might also, under some circumstances, infer that tbe proprietor knew of the alterations made by Ms tenants, from the fact of their near residence to each other. The alteration may be of such a nature that they will believe no tenant would make them without the previous knowledge aud assent of his landlord. These circumstances were before the jury in this case, and after weighing them all, they returned a verdict for the plaintiff.

We see no error in the charge of the Court, which will entitle the defendants to* a new trial.