20 Conn. 139 | Conn. | 1849
Two exceptions have been taken to the charge given to the jury in the court below.
But we do not so understand the language of that instrument. The clause was inserted merely for the purpose of giving a description of the buildings insured, and not to limit their use or to deprive the plaintiff of the enjoyment of his property in the same manner as buildings of that description are generally used and enjoyed. Had they been described as painted white, no one would contend that such a description would make it necessary for the insured always to keep them of that colour, or that the obligation of the insured would be at an end as soon as the paint had become worn off and gone .And the reason is obvious. Such a description would be construed merely as such, and not as a warranty that the buildings should always be kept painted.
It was indeed competent for the defendants, in the policy, to limit their liability, and prescribe in what manner the buildings, during the continuance of the policy, should be used. And the plaintiff, by the acceptance of the defendants’ obligation, upon such terms, would be bound by them.
To some extent, this has been done, in the present case. It was provided, that “ no ashes should be kept in any part of the buildings.” The keeping of ashes, contrary to that provision, would destroy the obligation of the contract. But this provision differs materially from the former. One is a prohibition-the other, a description, or at most, a warranty that the buildings, at the time they were insured, were such as they were described to be in the policy.
2. In the next place, it is claimed, by the defendants, that as the insurance was upon buildings used in a particular way, the jury should have been instructed, that if the loss were occasioned by any other use, the plaintiff could not recover. The court informed the jury, that a single act or so, in the use of the buildings, which did not belong to the common, ordinary, and appropriate use, would not defeat the policy and prevent a recovery, unless such acts were fraudulent, or grossly careless, and if grossly careless, were also the cause of the loss. The defendants insist, that this instruction was wrong; that the plaintiff cannot recover, if
The authorities which have been cited, if well founded, go far to sustain the charge of the court in this particular. Thus, where a barn insured against fire, required tarring, and a fire was lighted inside of the building, and a tar barrel brought in, for the purpose of performing the necessary operation ; in the absence and by the negligence of the plaintiff's servant, the tar boiled over and took fire, which was communicated to the building, and the barn was burnt ; yet it was holden, that the insured was entitled to recover. Dobson v. Sotheby, 1 Moo. & Mal. 90. (22 E. C. L. 260.) So where there was an insurance upon a kiln for drying corn, and the insured permitted some bark to be dried in it, in consequence of which, the building was burned ; the court held, that as there was no clause in the policy amounting to an express warranty that nothing but corn should be dried in the kiln, the insurers were liable. Shaw v. Rob-erds, 6 Ad. & Ell. 75. (33 E. C. L. 12.)
The defendants however say, that these decisions have gone too far, and cannot be vindicated. We do not consider ourselves necessarily called upon to examine the principles upon which those decisions are founded, for the purpose of testing their correctness, because, for another reason, we think the defendants are not entitled to a new trial.
The acts done by the plaintiff are set forth in the motion, so that we can see what they were, and whether they were a departure from the common and ordinary use of such buildings. We very well know, that farmers in the state are in the habit of using their barns for a variety of purposes, connected with their agricultural business, besides that of storing their hay and stabling their cattle. Their barns are frequently used as a shelter for their wagons, plows, sleds, and other farming implements. When the plaintiff caused the insurance to be effected on the buildings upon his farm, it is not to be presumed that he meant to deprive himself of their common and ordinary use ; or that the defendants, by their policy, intended any such thing. And, excepting so far as there is an express prohibition in relation to the use of them, as in the keeping of ashes, the understanding of the parties unquestionably was, that the common and ordinary
The acts done, in what is called the South or cider-mill barn, may be laid out o1 consideration ; for the motion states, that they were all performed and the building cleared out, previous to the fire, and nothing left in it, except some apples. These acts could not therefore have produced the fire.
And then with respect to the other barn, the plaintiff prepared and left in it the steep for his seed wheat, and stored in it the paints which he was using for painting his house. We discover nothing in these acts more than what is usual and common among farmers. They are very different from the act of storing lime and paints for merchants, or for purposes wholly unconnected with the business of the farm.
If therefore the charge of the court, in this particular, although sustained by high authorities, is unsupported by principles, (and upon this part of the case we express no opinion,) we do not see that the defendants, upon their own shewing, have sustained any injury ; and consequently, are not entitled to a new trial.
New trial not to be granted.