43 Mo. App. 518 | Mo. Ct. App. | 1891
I. The first ground of the defendant’ s appeal is that no immediate notice of the loss was given by the plaintiff to the defendant. The policy upon which this action is founded provides, amongst other things, that “where afire has occurred injuring the property herein described the assured shall * * * give immediate notice of the loss in writing to this company.” The notice was given not until fourteen days after the loss. The object, no doubt, of this general' notice, as distinguished from the particular notice. required by the terms of the policy to be given later on, was to enable the defendant to institute proper inquiry,
The plaintiff’s notice to defendant of the loss was in the form of a letter addressed to defendant with which were inclosed proofs of loss. The defendant in
II. The second ground of the ‘defendant’s demurrer to the plaintiff’s evidence is that it showed conclusively that the gasoline had been kept and used on and in the premises in violation of the conditions of the policy. The policy provides that if gasoline should be kept, stored or used in or on the premises described in the policy, the latter should be void. The premises described in the policy is “his two-story, brick dwelling-house with addition, occupied for family residence and situated on the southwest corner of Wyandotte a,nd Eleventh streets, Kansas City, Missouri.” The house is all that is described, and which is no doubt meant by the word, premises, as used in the .conditions of the policy which forbids gasoline to be kept, stored or used “in or on the premises herein, described.” Under the evidence in. this case we are left to determine the boundaries of the premises alone.from the description contained in the policy. Nothing is perceived in any provision of the policy which would justify us in concluding that the boundaries of the1511 premises” were intended to be more extensive than those of the house.
But the uncontradicted evidence is that the' plaintiff ’ s tenant or his servants did occasionally, how often it does not appear, introduce gasoline in small quantities into the house, for the purpose of destroying vermin, with which the kitchen was at times infested, and also for cleaning clothes, etc. Was this such ah use of gasoline as would render the policy inoperative % The rule is that the use of a prohibited article which will forfeit a policy must be an habitual use for the ordinary purposes to which such article is usually put and not an occasional introduction and use for a temporary and extraordinary purpose connected with the occupation of the premises. 1 Wood on Fire Insurance [ 2 Ed.] sec. 84 ; Moay on Fire Ins. [ 2 Ed.] sec. 241; Ins. Co. v. Simmons, 30 Pa. St. 302; Williams v. Ins. Co., 54 N. Y. 572; Mears v. Ins. Co., 92 Pt. St. 20. In Williams v. Ins. Co., 54 N. Y. 569, the plaintiff kept a
None of the cases cited by the defendant to which we have had access in any manner impugn the correctness ‘of the rulings in the cases to which reference has been made by us. According to these authorities it is quite obvious that the occasional introduction into the house of plaintiff of small quantities of gasoline for the purpose of destroying vermin or cleaning clothes was not, in a commercial or legal sense, such an habitual use thereof “on or in the premises” as was forbidden by the prohibitory clause of tho policy. We think that in any view, which may be taken of the evidence adduced by the plaintiff, that at the date of the fire the
III. The appealing defendant’calls in question the correctness of the first instruction for the plaintiff on the double ground, first, that there was no' evidence that the gasoline was used without plaintiff’s knowledge or consent, and, second, if there was such evidence upon which to base the instruction, it is erroneous because the use of gasoline was absolutely prohibited with or without plaintiff’s knowledge. It is now the well-established rule of law that a violation of any of ’ the prohibitions of a policy by the tenant of the assured is a violation by the assured himself. Ins. Co. v. Guenther, 16 U. S. 113; Kelly v. Ins. Co., 97 Mass. 284; Deihl v. Ins. Co., 58 Pa. St. 443. The last two cases cited seem to encroach upon the older cases of Sanford v. Ins. Co., 12 Cush. 541; Ins. Co. v. Simmons, 30 Pa. St. 299, but whether this is so or not the rule, as we have stated i,t to be, is, as we think, supported by the very highest authority, and, besides being consonant with both reason and public policy, should be followed by us. Whether the witness, Sarah Evans, carried the gasoline into the house with or without the knowledge or consent of the plaintiff was wholly immaterial. The jury was .required by this instruction to find a fact which was not essential to the plaintiff’s right of recovery. If the jury found the other facts required by the instruction, the verdict should have been for the plaintiff whether the element of knowledge or consent was or was not found by it to have existed at the time the witness carried the gasoline in the house. The finding of this fact by the jury in no way prejudiced the defendant, and constitutes no just ground for complaint.
Nor can the other objection to the instruction that the policy absolutely prohibited the use of gasoline in the house be sustained. Under the authorities which we have referred to, the use of gasoline was not under
IV. The defendant has lodged these objections against the plaintiff’s second instruction : First. That it directs a verdict for plaintiff if the jury find the gasoline was used without plaintiff’s knowledge or consent, and, second, that it “ignores the fact that gasoline had been habitually used on the premises and virtually directs the jury to find for the plaintiff if the use of gasoline, in the way it was used *on that occasion, was the cause of the fire and explosion.” As to the first objection we may remark that what was said in relation to ‘ ‘ knowledge or consent ’ ’ of plaintiff in connection with plaintiff ’ s first instruction is applicable here, and need not be repeated. We may supplement what was there said • with the further observation that, if the plaintiff himself instead of Sarah Evans had carried the gasoline into the kitchen under the circumstances outlined to the jury in the instructions of the plaintiff, in such case he would have been entitled to a verdict.
As to the second objection we may say that we do not think the plaintiff’s evidence established the fact that gasoline had been habitually used on the premises. In this case there is no room for question concerning a series of causes, as whether primary or secondary, proximate or remote; for the agent.is one and the same throughout, namely, fire. At each stage it was the ' action of fire. The agent was fire, though it acted in different ways upon the different successive subjects of its action, beginning with the match and terminating with the plaintiff’s house.
It is no sufficient answer to say that some of the phenomena produced were in the form of an explosion.
Y. The defendant’s instructions were all properly refused. All of them except the fifth proceed upon the erroneous assumption that the occasional or casual introduction of gasoline on the plaintiff’s premises in a quantity however small, for any purpose whatever, is prohibited by the terms of the policy.
The motion that the use must be habitual or at least' something more than occasional or incidental is not countenanced.
The defendant’s fifth instruction is obnoxious to the objection that it submits .a question of law for the determination of the jury. It was for the court, and not for the jury, to say upon the undisputed evidence in the case whether the use of the gasoline was such as avoided the policy. If the facts were disputed it would have been proper for the court to have indicated the essential facts constituting an use prohibited by the policy, and to have left it to the jury to say whether such facts were established by the evidence. But to leave it, as the instruction did, to the jury to determine both law and fact was highly improper.
It necessarily follows from what has been said that the judgment will be affirmed, which is so ordered.