German Fire Insurance v. Board of Commissioners

54 Kan. 732 | Kan. | 1895

The opinion of the court was delivered by

Johnston, J.:

Each policy contained a condition provided that the insured should not keep or use gasoline upon the premises, and that a violation of the condition would avoid the policy. The facts agreed upon clearly show that the fire which destroyed the property was occasioned by the use of gasoline, and it fairly appears that the gasoline which caused the fire was kept and used upon the premises. The statement respecting it is not as explicit as it might have been, but we think that the fair import is, that the lunch counter was a part of the premises. The burning of the grand stand was the subject of controversy and about which the parties were stipulating, and the manifest meaning of their agreement is, that the fire which burned the grand stand was communicated directly from the gasoline used upon the premises. It is true that the gasoline was not kept and used by the assured, nor by any express authority granted by them, and they, therefore, insist that they should not be held responsible for the use of the forbidden article. Although it is agreed that the board of county commissioners gave no authority for the use of the premises by the Grand Army of the Republic, it is agreed that the fact that the reunion was to be held upon the premises was a matter of general and common knowledge. It had been extensively advertised, and the board of county commissioners knew in advance that it would be held upon the fair grounds. It was held there for a period of several days, and gasoline stoves and lamps were used without hindrance or restriction. The board of county commissioners not only knew that the reunion was to be held upon the fair grounds, as other reunions had been held before, but they would have willingly granted the use of the premises for that purpose, if application had been made. Under such circumstances, the members of the Grand Army of the Republic cannot be regarded as strangers or trespassers, nor can the assured escape responsibility for the use of the prohibited articles. The company stipulated in each case that it would not assume the risk of the use of a very dangerous and combustible material. The violation of these conditions by anyone who occupied the premises, with the implied consent of the assured, is equivalent to a violation by the assured themselves. Under the facts, it must be held that the Grand Army of the Republic occupied and held control of the grounds with at least the implied assent of the board of county commissioners, and when they intrusted the occupation and control of the premises to another the latter became their representative, for whom they must answer as for themselves. (Insurance Co. v. Gunther, 116 U. S. 113; Gunther v. Insurance Co., 134 id. 110; Kelly v. Insurance Co. 97 Mass. 284; Diehl v. Insurance Co., 58 Pa. St. 443; Insurance Co. v. Simmons, 30 id. 299.) The condition in the policy that gasoline should not be used on the premises is plain and unambiguous, and the defendants in error expressly agreed that a violation of this condition should operate as a forfeiture of all insurance under the policy. It was a reasonable condition, and they cannot reasonably complain of the enforcement of a forfeiture.

The judgment in each ease will be reversed, and the causes remanded, with the direction that judgment shall be entered in each case in favor of the insurance company.

All the Justices concurring.