Como v. Caledonian American Insurance ( 1933 )

BAKER, P. J.

Heard on demurrers to the plaintiff’s replications to the defendant’s first and second additional pleas.

This is an action brought on certain fire insurance policies covering personal property.

By way of defense the first additional plea sets out what may be referred to as the increase of hazard warranty, namely, the presence of a still and certain inflammable materials used in the operation thereof within the premises in which the insured property was kept.

The second additional plea alleges that certain highly inflammable or explosive substances prescribed by the provisions of the policies were on the premises described in the declaration, and sets up a defense under what may be termed the prohibited articles warranty.

The plaintiff’s replications to these two pleas allege in substance that whatever was kept or maintained within said house was without the knowledge or consent of, the plaintiff and not under his control.

The questions raised herein appear to be determined by the decision of the Supreme Court of the United States in the case of

St. Paul Fire & Marine Ins. Co. vs. Bachmann, 285 U. S. 112.

The Court in that case makes a clear distinction between the two types of warranty involved herein. The holding is that the increase of hazard warranty is not violated unless said increase is within the knowledge and control of the insured but that the prohibited articles warranty is violated if the owner or a tenant keeps the prohibited article on the premises, even without the knowledge or control of the insured.

The Court believes that the use of the word “if” in the replication to the first additional plea, while perhaps unusual, does not necessarily make the replication bad. The gist of the replication is that the plaintiff had no eon-trol or knowledge of what was being maintained within said house.

For plaintiff: Arthur N. Votolato and William A. Gunning. For defendant: Boss & McMahon.

The demurrer to the plaintiff’s replication to the defendant’s first additional plea is overruled and the demurrer to the replication to the second additional plea is sustained.