124 Mich. 455 | Mich. | 1900
Prior to January 18, 1899, plaintiff owned a stock of goods in the city of Grand Rapids, upon which the defendant had a $1,000 policy of insurance, “the loss, if any, payable to George H: Reeder, trustee, as his interest may appear.” The plaintiff desired to remove the stock to Holland, and the following indorsement was made upon the policy:
“Permission is hereby granted to remove the insured property to the three-story, composition roof, brick building, occupied as a boot and shoe store, and situated at No. 73 East Eighth street, in the city of Holland, Mich. Insurance to cease at the former and attach at the latter location from twelve o’clock noon on the 18th day of January, 1899.”
The goods were at once removed to this location. The portion of the store in the three-story building was about 30 feet by 50 feet. Just back of this portion of the store was a one-story building about 30 feet by 30 feet, both portions having been used for many years together as one store. Both portions of the building were rented by plaintiff for one rental price. In the partition was a large opening where there had been a door, and also an opening Where there had been a window. Both portions of the building were occupied by the plaintiff, though the major portion of his goods was kept in the front portion. He had a rough door hung in the doorway, which fastened from the inside with a string. There was nothing in the opening made for a window.
The policy of insurance, among other conditions, contained the following:
‘ ‘ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, * * * . or if the hazard be increased by any means within the control or knowledge of the insured, * * * or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises benzine, benzole, dynamite, ether, fire
The policy contained no agreement indorsed thereon or added thereto varying in any respect the printed conditions as above set forth.
It is the claim of plaintiff that in March he and his clerk, Mr. Mensching, hired a room over the store, where they intended to live, and to get their own breakfasts over a gasoline stove; that he ordered a gasoline stove, which was to be delivered to him soon thereafter, and, for the purpose of supplying this stove with fuel, he bought a gallon of gasoline, which was put in a one-gallon can, and for the purpose of lighting the store he bought five gallons of kerosene oil. The oil and gasoline were delivered to him on Monday, and placed by him in the rear portion of the store. Prior to Monday, Mr. Mensching entered into other employment, and Mrs. Stewart was hired to take his place in the store. She worked on Monday and Tuesday. It is the claim of the plaintiff' that on Monday noon, when his clerk was gone to dinner, he used about one quart of the gasoline to remove some spots from the clothing which he wore. On Tuesday evening Mr. Boyer gave a key to the store to Mrs. Stewart, and told her she would have to open the store in the morning, as he was going to Grand Rapids that evening, and would not return in time to open the store in the morning.. About 11 o’clock at night the store was discovered to be on fire. About the time the fire was discovered, one of the front windows was thrown forward into the
Upon the trial, after all the testimony was in, the circuit judge directed the jury to render a verdict for the defendant, upon the theory that the policy was void because plaintiff violated its conditions by allowing gasoline upon the premises. It is claimed by plaintiff that “forfeitures are not favored in the law; that, to enforce the condition in the policy in suit, it is the duty of the defendant to show some substantial violation of the condition; it must not only show a viplation, but it must show a violation of the very words of the condition,' and, as before stated, such violation must be substantial, and not merely technical, fictitious, or imaginary,”—citing Bates v. Benefit
■ It is insisted the last-named case should decide this one in favor of plaintiff. We cannot agree with counsel in that contention. In the last-named case the gasoline was in the building for the purpose of being used by the painters when they were making ordinary and usual repairs to the building by painting it where it needed painting. The court discussed the questions involved at length, citing many authorities, and held, in substance, that the making of ordinary repairs, in a reasonable way, even though it increased the risk while the work was going on, and even though an article was used in the work the use of which in the business carried on in the building was prohibited by the policy, would not avoid the policy; that if the use of naphtha at the time and in the manner in which it was used was reasonable and proper in the repair of the building, having reference to the danger from fire as well as to other considerations, it would not render the policy void, but the question was a proper one for the jury. The case proceeded upon the theory that it was in the contemplation of the parties that the insured building should be kept in repair, and that what it was reasonably necessary to do to 'accomplish that purpose would not avoid the policy. But there can be no such claim made here. It is a well-known fact that gasoline is a dangerous article to have in and about a building. The parties had a right to contract that it should not be allowed upon the premises without the written consent of the company. They made such a contract. Gasoline was brought upon the premises, not for the purpose of being used in a reasonable way for necessary repairs, but, according to the version of the plaintiff, for the purpose of using it in a gasoline stove in an up
It is claimed by counsel that the goods which were insured were in the three-story, composition roof, brick building, while the gasoline was in the one-story building, and did not come within the prohibition of the policy. We think this too technical. Permission was given to remove the insured property to the three-story, composition roof, brick building, occupied as a boot and shoe store, and situated at No. 72 East Eighth street. When this permission was granted, No. 72 included the rear portion of this store as well as the front portion. Both, portions had been occupied for a long time as one store. When the three-story building was erected, there was a door five feet wide and a window three feet wide in the rear partition thereof. When the one-story addition was built, the window sash and the door were removed, and both portions of the room for many years were used as No. 72 East Eighth street, and were so used by the plaintiff when the fire occurred. Some of his stock of goods were there. It is true a rough door had been put in the
It is said there is no evidence in the case tending to show that the gasoline was the cause of the fire; that the fact that the rear portion of the store did not burn is conclusive that the gasoline in no way contributed to the loss; and that the statute of 1897 (sections 5180-5182, 2 Comp. Laws 1897) was designed to prevent the forfeiture of fire-insurance policies by the violation of any condition of the policy when such violation has been without prejudice to the insurer, as is indicated by its title; and that, if we are guided by the title of the act, this case comes within it. It is said any other limitations in the body of the act are unauthorized and void, because in conflict with section 20 of article 4 of the Constitution. It is also said the act, with these limitations left out, is complete, and therefore valid. It is true the body of an act must not, under our Constitution, contain provisions contrary to, or not germane to, the subject-matter indicated in the title; but we do not understand the body of the act must contain all the provisions it might contain under the title to save the act from being unconstitutional. The body of the act contains no provisions not germane to the subject indicated by the title, and not authorized by it. In the absence of the statute, it is clear a breach of the contract of insurance would avoid the policy. Shelden v. Insurance Co., ante, 303 (82 N. W. 1068). The statute of 1897, by its terms, does not take this case out of that rule. The loss occurred during a breach of the contract, and while its terms were being violated. The statute does not provide that under such circumstances the policy shall be valid.
Judgment is affirmed.
