Franklin Fire Insurance v. Gruver , 100 Pa. 266 ( 1882 )

Mr. Justice Gordon

delivered the opinion of the court May 1st 1882.

We cannot sustain the complaint made against the admissioxi of the Mench lease. Mench had erected, on gx-ound leased froxn the plaintiff, one of the houses which was said to have increased the risk to the insured premises, and it was altogether proper to show that that lease antedated the policy, for 'this tended to prove that Graver in no way, even by implication, assented to the objectionable erections. .

It is true, as the case now presents itself to us, this evidence was of very little xnoment, but as it was tried in the court below, we ¡think, with the learned judge, it had soxne bearing in the way of showing that the plaintiff’s property was not rendered xxxore hazardous by any act of his own.

The determination of the greater danger from fire to the assured premises, in consequence of the proximity of the new buildings, was properly referred to the jury, they being at the same time instructed that if the danger wTas thus increased, in default of notice thereof to the company according to the condition in the policy, the plaintiff ought not to recover. Of this submission and instruction the defendant has no right to complain, for it thus had, at the hands of the court, all it was entitled to ... At best the question of additional hazard was one of fact purely, and of right could not be withdrawn from the jury.

Williams v. The Insurance Co., 57 N. Y. 274, was a case upon a.policy containing a condition somewhat similar to that under consideration, and the inquiry was whether the keeping of a small quantity of crude petroleum, in the insured premises, so increased the risk as to require notice to the company in order to prevent forfeiture: — Held, whether the amount of petroleum so kept was large or small, the question of the increase of risk resulting therefrom, was for the jury, and could not properly be determined by the court. So here; whether the new buildings were near to or far from the assured property, the question, nevertheless, whether an additional hazard was thereby created, was one exclusively for the jury.

We may here, in this connection, add, that error is unjustly charged upon the court on account of its addition of the adjective “ material ” to the word “ risk this qualification not being found in the condition. But as in the defendant’s third and sixth points the word “ risk” -was so qualified, fault should not be found with the court for doing what it was requested to do.

The complaint made of the refusal of the court to admit export evidence as to the fact that the actual danger from fire to the plaintiff’s house, was rendered greater by the adjacent buildings, cannot be sustained.

How any person can be said to be an expert in that which is not and cannot be followed as a business, or in that which must necessarily result from observation of a character so general that it must be common to every person, we cannot understand. The opinion of a witness who neither knows, nor can know, more about the subject matter than the jury, and who must draw his deductions from facts already in the possession of the jury, is not admissible: Hartman v. Insurance Company, 9 Har. 466. Were it otherwise, the opinions of jurors upon the most obvious facts, might be always shaped for them by the testimony of so called experts, and thus would a case be constantly liable to be determined, not by the opinions and judgment of the jury, but by the opinions and judgment of witnesses. But following the doctrine of the case last above cited, the court did admit the testimony of experts to prove that, in the business of insurance, the technical risk, or rate of insurance, was increased by the fact of the additional exposure to which the plaintiff’s property was subjected by the erections in its vicinity. We are not sure that this was not more than the defendant had a right to require of the court. “ Or if,” reads the condition, “ the risk shall be increased from any cause whatever, within the knowledge of the assured.” It will be observed that the knowledge of the plaintiff was thus made a material factor in this condition; therefore, proof by experts that, from a technical point of view, the risk was increased, came to nothing unless accompanied by proof that the assured knew that the erections complained of created a hazard for which, by the rules of insurance, an additional rate would be charged. But of this he knew nothing. He did not even know the class in which ho was insured, or whether his buildings were regarded as exposed or unexposed. It does not so much as appear that he signed an application, or any other paper, in which was set forth the character and exposure of the buildings. For aught he knew, his property was rated and charged as exposed, and had such been the case the company could not have set up the subsequent exposure as a defence. It does, therefore, seem to me, that without some proof by the company, that the plaintiff had some notice or knowledge of the rules of insurance, its expert evidence came to nothing.

We think, then, that when the court instructed the jury, that the plaintiff was bound to take notice of, and report to the company, any increase of actual risk or hazard to which his property was exposed subsequently to the date of his policy, it discharged its duty to the defendant fully, audit is even questionable whether the court did not thus impose upon the plaintiff a burden to which he ought not to have been subjected.

There is nothing in the seventh exception. It is true, the knowledge of Derr, the agent of the defendant, as to the erection of the new buildings, was wholly irrelevant, and proof thereof ought not to have been received, but the court not only withdrew this evidence, but expressly instructed the jury that Derr's knowledge could not affect the company nor release the plaintiff from his duty to notify the company if there was in fact an actual increase of risk. Thus was the error effectually cured by an instruction which put the objectionable evidence wholly out of the case.

The judgment is affirmed.