Matson v. Farm Building Fire Insurance , 16 N.Y. Sup. Ct. 415 ( 1876 )

MulliN, P. J.:

The plaintiff insured in the defendant’s company two barns and other real and personal property, for the term of three years from the 9th day of May, 1873. The policy contained the following, amongst other provisions and conditions, to wit, that the defendant should not be liable for loss occasioned by the use of .kerosene, burning fluid, or any chemical oil, as a light, in any barn or outbuilding.

On the morning of the 19th September, 1874, the plaintiff’s husband took a kerosene lamp and went into one of the barns to catch a couple of fowls. He placed the lamp on the end of a plank and then caught one of the fowls; while in pursuit of the other a fowl flew against the lamp, throwing it over in the straw, which took fire and the barn was destroyed.

On the trial, the defendant’s counsel asked for a nonsuit, on the ground that the condition above mentioned was violated and the policy thereby rendered void. The court, without expressing any opinion on the question, advised that the counsel consent that a verdict be taken tor the plaintiff, subject to the opinion of the court at General Term. They consented, and a verdict was taken accordingly.

The plaintiff now applies for judgment on the verdict.

Policies of insurance are to have a reasonable, as distinguished from a strained or technical construction and when the language is susceptible of two constructions, that one most favorable to the insured must be adopted, as the language is that of the insurers rather than that of the insured. (Rann v. Home Ins. Co., 59 N. Y., 387; Breasted v. The Farmers’ Loan and Trust Co., 4 Seld., 299-305; Reynolds v. Commerce Fire Ins. Co., 47 N. Y., 597, 604, 605.)

The condition that the defendant shall not be liable for a loss occasioned by the use of kerosene oil meant the habitual use, as distinguished from the use upon a single occasion.

To construe the condition so as to preclude the taking into the barn a kerosene lamp once in a period of one, two or three years would be exceedingly unreasonable.

Some one of the family of the insured might, while in the barn in the night, fall or break a limb, or a horse might kick and fatally injure him or her, and the only light in the dwelling-house be a kerosene lamp (the policy does not prohibit the use of kerosene in the dwelling-house), would it not be exceedingly unreasonable to hold the policy void, because another member of the family took such a lamp and carried it into the barn in order to render aid to the person injured ?

The use prohibited, of kerosene, is the habitual, and not the occasional use.

In Dobson v. Sotheby (22 E. C. L., 481), the policy was upon premises “ where no fire is kept, and no hazardous goods are deposited buildings were insured as thus described. The buildings were agricultural buildings, and required tarring, and a fire was lighted inside and a tar barrel brought into the building for the purpose of performing the necessary operations. In the absence, and by the negligence of plaintiff’s servants, the tar boiled over, took fire, communicated with that in the barrel, and the premises were burned down.

An action was brought on the policy, and it was insisted, on behalf of the company, that the plaintiff could not recover, as lighting the fire in the barn was in contravention of the policy, but the court held . the plaintiff entitled to recover, as the policy prohibited the habitual, and not the occasional use of fire in the building.

The same principle was asserted in O'Niel v. The Buffalo Fire Insurance Company (3 Comst., 122, 126, 127).

The plaintiff is entitled to judgment on the verdict.

Present — MulliN, P. J., Smith and Taloott, JJ.

Judgment ordered for the plaintiff on the verdict.