Hynds v. Schenectady County Mutual Insurance , 16 Barb. 119 ( 1852 )

Harris, J.

Two grounds of defencé, only, are contained in the defendants’ answer. The one is, that at the time of the application and also at the time of the fire, a quantity of flax and tow were stored or placed in the lower room of the carding mar. ehine building. The other, that in making the application and also in giving an account of their loss, the defendants concealed and misrepresented the manner in which the building was occupied. For this reason, if for'no other, the judge was right in refusing to charge that the policy was invalid because the plaintiffs had omitted to state in their application that there was a fireplace in the building, or that the building was two stories high, or what were its internal arrangements. In respect -to these grounds of defense it is enough to say, they were not within the issues upon trial.

I think, too, the judge has applied the true rule of law to the facts in relation- to the flax which at the time of the insurance and at the time of the fire also, was in the lower room of the building. Flax was a hazardous article. By the terms of the policy, the plaintiffs had no right to store or keep it in the building. But the mere fact that a few bundles of undressed flax had been permitted to remain in the basement of the building, under the circumstances as they appear in the case, cannot be conclusive evidence that the building was appropriated, applied or used for storing or keeping flax, within the meaning of these terms, as used in the policy. The terms “ appropriate,” “ apply,” and “ use,” import volition, purpose, intent. Before the policy could be avoided, on the ground of a violation of this provision, the fact must be established that the plaintiffs intended to store or keep the flax in the building. This question was submitted to the jury. It was left to them to say, upon the evidence, whether the building had been appropriated, applied or used for the storage of the flax. To this general proposition, as it was submitted, there was no objection. To aid the jury in determining the question thus left to their decision, the judge proceeded to state, negatively, what would not amount to such an appropriation, or application or use of the building as would avoid the policy. He says, if the building was not devoted to, (by which terms I understand him to mean the same thing as though he had repeated the words “ appropriated” or “ applied,”) or used for that purpose, that is, for the purpose of storing flax, and if, on the contrary, the small pile of undressed flax, which was there, was only left there temporarily, that is, with no intention or purpose of having it regularly stored or kept there, this would not amount to such an appropriation of the building to the storing or keeping of flax as would avoid the policy. I understand the word “ regularly,” to have been employed in very much the same sense as the words “ habitual” and “ ordinary” were used by Lord Tenterden in Dobson v. Southby, (1 Mood. & M. 90.) In that case, the terms of the policy required that no fire should be kept in the building, and that no hazardous goods should be deposited there. For the purpose of tarring the building a barrel of tar had been brought there, and a fire had been lighted, for the piupose of heating the tar. The tar boiled over and took fire, and thus the building was burned. In an action upon the policy, the ''defendant contended that the plaintiff could not recover, first, because the lighting of a fire was in contravention of the terms of the policy, and next, because the bringing of the tar barrel there, it belonging to the description of hazardous goods, was also a breach of the conditions of the policy. The court said, “ If the company intended to stipulate, not merely that no fire should habitually be kept on the premises, but that none should ever be introduced upon them, they might have expressed themselves to that effect, and the same remark applies to the case of hazardous goods also. In the absence of any such stipulation, I think the condition must be understood as forbidding onlflfchp habitual use of fire, or the ordinary deposit of hazardous^Fo|s.” So, in this case, if it had been the intention of the insurers that the policy should be forfeited if any hazardous article should at any time be introduced or found upon the premises, it would have been easy for them to express such intention, in their contract. Then, the plaintiffs would have been apprised of the strictness of the terms upon which they held their insurance. Then, if a box of glass, or a ream of paper, or a bottle of spirituous liquor should happen to be introduced into the building, however temporary the purpose for which it was introduced, it might work the forfeiture of the policy. The terms of this policy require no such strictness of interpretation. It is provided that the braiding shall not, even partially, be appropriated, applied or used for, or in the equally significant language of the charge, devoted to, the purpose of storing or keeping hazardous goods. The jury were told, in language satisfactory to the defendants’ counsel, that the use of the building for such a purpose would avoid the policy. But, lest they might misapprehend this instruction, they were also told, that if the small pile of undressed flax said to have been in the lower room was there but temporarily, and with no intention of having it regularly stored or kept there, it would not amount to an appropriation of the building t4 a purpose inhibited by the policy.

Shaw v. Robberds, (6 Ad. & Ellis, 75,) is a case in point to sustain the rule of construction adopted in this case. The buildings insured consisted, among others, of a kiln for drying corn. One of the conditions of the policy was, that if any alteration should be made in the business carried on in the buildings, notice should be given to the insurers, &c. It appeared in evidence that, after the insurance had been effected, a vessel laden with bark had been sunk near the premises, and the owner of the kiln had allowed the owner of the bark to dry it in his kiln. While it was being dried, the kiln took fire and was.burned down. It was insisted, for the defense, that such a change of business had been shown as required a notice according to the terms of the policy. But Lord Denman, chief justice, said, “the condition points at something j^nanent and habitual. If the plaintiff had dropped his business of corn drying and taken up that of bark drying, or had' added the latter to the former, no doubt the case w'ould have been within that condition. Perhaps, if he had made any charge for drying this bark, it might have been a question for the jury whether he had done so as a matter of business, and whether or not he had thereby made an alteration in his business, within the meaning of that condition. But, according to the evidence, we are clearly of opinion that no such question arose for the consideration of the jury; and that this single act of kindness was no breach of the condition.” (See also O'Neil v. The Buffalo Ins. Co., 3 Comst. 122 ; 2 Greenl. Ev. § 408.)

In Langdon v. The N. York Fire Ins. Co., (6 Wend. 623,) there was a condition that the building should not be appropriated, applied or used for the purpose of storing any hazardous goods. When the building was burnt it contained a cask of oil and several casks of spirituous liquors which were kept as a part of the stock in trade of the party insured. It was held that this was not a violation of the condition of the policy, on' the ground that the goods, though hazardous, were not deposited for safe keeping, but kept for the purpose of sale and consumption. Perhaps the addition of the word “ keeping,” in the policy in question, might cover such a case as that presented in Lang-don v. The New- York Fire Ins. Co.; but if any such effect is to be given to this word, it can only be in cases where the building has been either wholly or partially appropriated to the keeping of the prohibited articles, as distinguished from a mere temporary or occasional deposit without any intention of a permanent or habitual use of the building for such an object.

I think too the judge who tried this cause has correctly stated the law on the question of negligence. The counsel for the plaintiff is entirely mistaken in supposing that the general principle which will not allow a party, himself guilty of negligence, to recover for the loss or injury to which he has thus contributed, is applicable to an action upon a policy of insurance. The general doctrine on that subject is, that mere negligence, whether of the insured or his agents or servants, constitutes no defense for the insurers. (Ellis on Insurance, 72.) In Waters v. The Merchants' Louisville Insurance Company, (11 Peters, 213,) it was said by Story, J. that the doctrine had, for a great length of time, prevailed, that losses occasioned by the mere fault or negligence of the assured or his servants, unaffected by fraud or design, are within the protection of policies. (See also The Columbia Ins. Co. of Alexandria v. Lawrence, 10 Pet. 507.) The charge in this case contains nothing more. The jury were told that mere negligence was not sufficient to defeat a recovery; that before this ground of defense could be made available, there must be evidence of such a degree of negligence as would evince a corrupt design. This I understand to be the well settled rule of law on this subject. If it were not so, policies of insurance against loss by fire would be of comparatively little value, for the cases are few in which losses by fire cannot be traced to some sort of carelessness or negligence on the part of the assured, or his family or servants. It is one of the objects of insurance to protect the party insured, against negligence. In Shaw v. Robberds, above cited, Lord Denman said that “ in the absence of fraud, the proximate cause of the loss only is to be looked to, and that the simple fact of negligence had never , been held to constitute a defense.”

Upon the whole, I think the case has been well tried, and that the judgment should be affirmed. j