66 Cal. 178 | Cal. | 1884
1. Appellant claims that, upon the authority of Gilmore v. The Lycoming F. I. Go., 55 Cal. 123, defendant’s motion for judgment on the pleadings should have been granted.
2. The policy sued on provides that it shall be void “ if the risk be increased by any means,” or * * * “ if gunpowder, phosphorus, camphene, spirit, gas or chemical oils are kept or used on the premises without written consent.” The property insured was the plaintiff’s “ stock of stationery, books, toys and other merchandise,” contained in a certain described building. The defendant by answer set up that at the time the fire in question occurred, the plaintiff had in his store, wherein was the property insured, “ gunpowder, to wit: A certain lot of fireworks and like combustible merchandise made of gunpowder,” without the written consent of defendant, and that the fire that destroyed the property insured “ originated in and occurred by the combustion of said gunpowder in the said fireworks contained, and not otherwise.” At the trial it was admitted that the fire “ was caused by the explosion of a bomb thrown from the street among a lot of fireworks in plaintiff’s store.” The clause providing that the policy should be void “ if the risk be increased by any means,” may be laid out of consideration, inasmuch as that defense was not set up in the answer. (Cassacia v. Phoenix Insurance Company, 28 Cal. 630; Kentucky and L. M. Insurance Company v. Southard, 8 B. Monroe, 634, et seq.; Ferris v. N. A. F. Insurance Company, 1 Hill, 71.)
It remains to consider whether the fireworks kept by the plaintiff rendered void the policy, under that provision of it prohibiting the keeping or use on the premises of “ gunpowder.”
Judgment and order affirmed.
McKinstry, J., and McKee, J., concurred.
Hearing in Bank denied.