44 Cal. 320 | Cal. | 1872
■ The appeal is from an order granting the defendant a new trial.
The action was upon a policy of insurance which contained a provision that “ if the accused shall keep gunpowder, fireworks, nitro-glycerine, phosphorus, saltpeter, nitrate of soda, petroleum, naphtha, gasoline, benzine, or benzine varnish, or keep or use camphine, spirit gas, or any burning fluid or chemical oils, without written permission in their policy, then, and in every such case, this policy shall be void. Kerosene oil, however, may be used for lights in dwellings and kept for sale in stores in quantities not exceeding five barrels, to be drawn by daylight only.” At the request of the defendant the Court instructed the jury as follows:
*322 “If the jury believe from the evidence that a lamp supplied by kerosene or chemical oil was used as a light in the store in question at the time of the fire, or at any time after the execution of the policy of insurance, before the fire, that fact renders the policy null and void, and the verdict must be for the defendant.”
The motion for a new trial was made upon the ground “ that the verdict should have been for defendant instead of plaintiff in consequence of the assured using kerosene oil as a light in said store as aforesaid without written permission of his policy.”
1. We are of opinion that the purport of the policy is that the use of kerosene oil was thereby prohibited to the assured unless used as a light in a dwelling. If the premises were not of that character, but were a store, then its use by the assured amounted to a forfeiture of the policy. The privilege of using kerosene oil as a light is expressly extended to the ease of a dwelling, and in the face of this it would be doing violence to the plain intention of the parties, as shown in the language of the policy, to extend that privilege so as to embrace the case of a store as such.
2. Hor do'we think that it can be fairly claimed that the premises upon which the kerosene oil was actually used as a light constituted the dioelling of the assured within the intent of the policy. Even supposing that the small back room in which the assured and his clerk slept was in itself a dwelling, distinguishable from the larger room which unquestionably was a store, and that the use of kerosene oil within the small sleeping apartment as a light would therefore be its use in a dwelling, and so be permissible under the terms of the policy; yet it is apparent from the testimony given in the ease by the assured and his clerk when testifying as witnesses, that the lamp supplied with kerosene oil was, habitually and on the night of the fire, left burning on the
Order affirmed.
