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the question of the right, under the Wiscon-, enjoin the secretary of state from enforcing sin Constitution, of taxpayers to bring ac- the primary election law, and from auditing tions, and seemed to hold that in some cases claims for expenses under it. This case is a taxpayer may, if the attorney general re- referred to in the Bolens Case as not disfuses, bring an action in the name of the cussing the question of jurisdiction. state on his own relation originally in the

B, B. B. supreme court under the above section of the Constitution, and that in that case the action is the same as if it were brought by the attorney general, and as if the state MAINE SUPREME JUDICIAL COURT. were the real plaintiff, and that the court would have authority in that case to pre

BELONIE BOUCHARD vent a misapplication of funds by a state officer, but seemed to consider that it would DIRIGO MUTUAL FIRE INSURANCE be only in cases of great exigency, that the

COMPANY. court would grant such an injunction, stating that it did not find it necessary to de

(- Me.

92 Atl. 899.) cide whether the alleged illegal expenditure of funds alone presented a case of such

Insurance gasolene keeping exigency as to justify the use of the origi

using. nal jurisdiction of the court to prevent such an expenditure; this being apparently on gine in his barn as part of an outfit for

1. The use by a farmer of a gasolene enthe ground that there were other features threshing his grain is not within the operain the statute which, if invalid, might have tion of a provision in a policy of insurance authorized the court to act. The theory was that actions of this kind brought by a

on the property making it void if burning taxpayer were not in any sense taxpayers' the premises.

fluids are kept or used by the insured on actions in the usual sense, and that tax

Same payers' actions in the usual sense,

increase of risk temporary brought in an inferior court, could not lie against the state officer, as, if it were neces

2. The mere temporary use in an insured sary for any action to be brought against barn of a gasolene engine to thresh grain is him, the supreme court had power to au

not within a provision in the policy makthorize an original action to be brought in ing it void if the situation or circumstances that court upon the relation of a citizen if affecting the risk shall be so altered as to the attorney general would not act.

cause an increase of the risk. In State ex rel. Lamb v. Cunningham, 83 Same barn time of threshing. Wis. 90, 17 L.R.A. 145, 35 Am. St. Rep. 27, 3. A policy of insurance on a farm barn 53 N. W. 35, the supreme court sustained will be held, in the absence of express lanthe right of a private citizen and taxpayer, guage to the contrary, to cover it during after his application to the attorney gen- the ordinary uses to which it is put, such eral to proceed had been refused, to bring as the annual threshing of the grain gathan action in the supreme court on his own ered into it in the customary way. relation in the name of the state, to re- Trial – question for jury waiver of strain the secretary of state from putting proof of loss. into effect an apportionment act which the 4. Whether or not an insurer waived court held to be unconstitutional.

proof of loss by denying liability on the In State ex rel. Rosenhein v. Frear, 138 policy is a question for the jury. Wis. 173, 119 N. W. 894, where a taxpayer brought a petition to commence an action

(February 3, 1915.) in the supreme court of Wisconsin for the purpose of preventing payment of expenses Note. - Fire insurance: use of engine out of the state treasury, incurred or which on farm premises as violation of genmight be incurred, by a joint committee of eral provision in fire policy against the legislature under a resolution clothing increase of risk or specific provisions such committee with authority to investigate relating to engines. a certain matter, the court, in denying the application on the merits, said: "If the This note does not cover the question of secretary of state and state treasurer were what constitutes a waiver of provisions alabout to take such action as to disburse i leged to have been violated by the use of state moneys for illegitimate purposes, it engines; nor the question as to the effect of would be within the competency of this a temporary use of an engine which had court, in the exercise of its original juris- ceased before the loss in question. diction, to entertain an equitable action to Generally as to the effect of a temporary prevent it on the initiative of a taxpayer; condition which ceased before loss, under the attorney general refusing, on proper re- general provision against increase of risk, quest, to act in the matter."

or specific provision against certain condiIn State ex rel. Van Alstine y. Frear, 142 tions, see notes to Sumter Tobacco WareWis. 320, 125 N. W. 961, 20 Ann. Cas. 633, house Co. v. Phenix Ins. Co. 10 L.R.A. the court dismissed an action by a tax- (N.S.) 736: Port Blakely Mill Co. v. Springpayer brought in the circuit court after re- field F. & M. Ins. Co. 28 L.R.A. (N.S.) 593 ; fusal to act by the attorney general to 'Clute v. Clintonville Mut. F. Ins. Co. 32

occur.

granted by the Supreme Judicial Court Co. 3 N. Y. 122; Thompson v. Equity F. for Somerset County of an action brought Ins. Co. [1910] A. C. 592, 3 B. R. C. 1, to recover the amount alleged to be due on 80 L. J. P. C. N. S. 13, 103 L. T. N. S. 153, a fire insurance policy. Sustained.

26 Times L. R. 616, 19 Ann. Cas. 412; The facts are stated in the opinion. Patterson v. Central Canada Ins. Co. 15 Mr. Fred F. Lawrence, for plaintiff: West. L. Rep. 123; Dobson v. Sotheby,

The use of the gasolene engine by the Moody & M. 90, 31 Revised Rep. 718; 19 plaintiff for the purpose of threshing his Cyc. 736–738; 2 Clement, Fire Ins. pp. 335, grain was not a violation of either of the 342; May, Ins. 4th ed. $$ 219, 239 et seq.; two clauses in the policy, relied on by de- Maril v. Connecticut F. Ins. Co. 51 Am. fendant, as to the use of prohibited articles St. Rep. 102, and note, 95 Ga. 605, 30 L.R.A. and increase of risk.

| 835, 23 S. E. 463; Reaper Ins. Co. v. Jones, State v. Stevenson, 91 Me. 113, 39 Atl. 02 Ill. 460; Archer v. Merchants' & Mfrs. 471; Cooley, Briefs on Ins. pp. 1698, 1699; Ins. Co. 43 Mo. 439; American Cent. Ins. Springfield F. & M. Ins. Co. v. Wade, 95 Co. v. Green, 16 Tex. Civ. App. 531, 41 S. Tex. 598, 58 L.R.A. 714, 93 Am. St. Rep. W. 74; Northern Assur. Co. v. Crawford, L.R.A. (N.S.) 240; McClure v. Mutual F.

But trivial or temporary variaIns. Co. 48 L.R.A. (N.S.) 1221; and see tions in the risk incident to the ordinary later case Dolliver v. Granite State F. Ins. use of the insured property are presupposed Co. 50 L.R.A.(N.S.) 1106.

by the contracting parties to be likely to

Insurance must be presumed Provisions as to increase of risk, or change to be made with reference to the character of risk of exposure.

of the property insured and to the owner's

use of it in the ordinary way, and for The use of an engine on premises in the purpose for which such property is ordisured as farm property will not constitute narily held and used, or to cover risks inan increase of risk if the particular use cident to such use.

It is a matter is one which the parties must have con- of common knowledge that cutting fodder templated in view of the nature and ordi- by hand, horse, steam, or gas-engine power nary use of the insured property.

is a very customary operation on farms. Thus, in Siemers v. Meeme Mut. Home We think that when the contract was made Protection Ins. Co. 143 Wis. 114, 139 Am. it was fairly within the contemplation of St. Rep. 1083, 126 N. W. 669, where farm the parties that such work might be carried buildings were burned while a threshing on, and that a steam engine might be emengine was being used for driving a feed ployed in doing such work unless its use cutter, it was held that it was fairly with was specifically forbidden by the policy, in the contemplation of the parties that and that the court committed no error in cutting fodder might be carried on, and refusing to submit a question to the jury that a steam engine might be employed in asking whether the risk had been increased doing such work unless its use was specific- by its use. The clause in question has refally forbidden, and that there was no error erence to some permanent change in the in refusing to submit to the jury the ques. character or condition of the insured proption whether the risk had been increased by erty, and not to a temporary change in the the use of the steam engine, within a pro- risk, which was mere incident to the vision that if the risk should be increased ordinary use of the property.” by any means whatever, or be occupied in So, in German Ins. Co. v. Hart, 16 Ky. any way whatsoever so as to render the L. Rep. 344, a provision in a policy on a risk more hazardous, the policy should be barn and its contents that if the hazard void. The court said: "Fire hazard is a should be increased in any way whatever, variable quantity. It changes constantly except with the insurer's consent, it should from day to day, and sometimes impercep- be void, was held not violated by the plactibly, from the operation of the laws of ing and using of a steam thresher in close nature and from various circumstances be proximity to the barn. This use was held to yond the control of the insured. Such in- be such a temporary use of the property fluences must, in general, unless unusual or in the course of the insured's business as extraordinary, be considered as neces- must, from the nature and surroundings at sary part or incident of the risk which the the time the application was accepted and insurer has undertaken to bear. It is not to the policy issued, have been anticipated be supposed that the insured has guaranteed and intended by the contracting parties; that no improvements or changes shall be and the fact that it caused the fire was made anywhere in the vicinity of the in- held not to bring it within the prohibited sured property during the life of the insur- clause. ance, but it is reasonable to exact an obli- In Johnston v. Dominion Grange Mut. F. gation from him that he shall not allow Ins. Co. 23 Ont. App. Rep. 729, a condior permit a change to be made in the struc- tion providing for a forfeiture in case of ture, nature, or habitual use of the insured any change material to the risk without property materially different from that notice to the insurer was held to refer which the insurer has agreed to undertake. I to some structural change in the premises

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24 Tex. Civ. App. 574, 59 S. W. 916; Barnard | 143 Wis. 114, 139 Am. St. Rep. 1083, 126 v. National F. Ins. Co. 27 Mo. App. 26; N. W. 669; Farmers' Mut. F. Ins. Co. v. Washington Mut. Ins. Co. v. Merchants' & Moyer, 97 Pa. 441; Adair v. Southern Mut. Mfrs. Ins. Co. 5 Ohio St. 487; 13 Am. & Ins. C'o. 107 Ga. 297, 45 L.R.A. 204, 73 Eng. Enc. Law, 293; Whitney v. Black Am. St. Rep. 122, 33 S. E. 78. River Ins. Co. 72 N. Y. 117, 28 Am. Rep. Mr. S. W. Gould for defendant. 116; Heffron v. Kittanning Ins. Co. 132 Pa. 580, 20 Atl. 698; Girard F. & M. Ins. Cornish, J., delivered the opinion of the Co. y. Stephenson, 37 Pa. 293, 78 Am. Dec. court: 423; Crane v. City Ins. Co. 2 Flipp. 576, Action on a fire insurance policy for loss 3 Fed. 558; James v. Lycoming Ins. Co. of plaintiff's farm buildings and personal 4 Cliff. 272, Fed. Cas. No. 7,182; Washing property. The presiding justice ordered a ton F. Ins. Co. v. Davison, 30 Md. 91; nonsuit. The main issue is whether the McKeesport Mach. Co. v. Ben Franklin Ins. fact that the fire was caused by the operaCo. 173 Pa. 53, 34 Atl. 16; German Ins. tion of a gasolene engine by the plaintiff Co. v. Hart, 16 Ky. L. Rep. 344; Siemers for threshing grain, in the barn floor, avoidv. Meeme Mut. Home Protection Ins. Co. led the policy either because it violated the or alteration in the work or business car- appeared that the engines use corncobs for ried on, and not to a mere temporary and fuel, and that the parties were fearful of casual act, and it was held not to be violated fire, and for the first week kept a watchby the use for but one day of a steam engine man at night, and that several times durin connection with a grain crusher.

ing a period of two weeks fires had caught. A like view was taken in Adair v. South- The court said that if by increase of hazard ern Mut. Ins. Co. 107 Ga. 297, 45 L.R.A. 204, was meant increasing liability to take fire 73 Am. St. Rep. 122, 33 S. E. 78, where a and to be destroyed by fire, they could not provision declaring that the policy should doubt that the record showed that the hazbe forfeited “by any change in the use ard was increased. The condition as to in. or condition of the building, including ad creased risk, however, was held to have ditions or repairs, or by the erection of been waived in this case, and the decision other buildings, or in any other manner by upon the latter point was affirmed in 197 which the degree of the risk is increased, 111. 190, 64 N. E. 339. unless due notice is given to the company

In Adair v. Southern Mut. Ins. Co. supra, and a new agreement is entered into," was construing a provision of the Code that held to apply to such changes as were of a the assured is bound to ordinary diligence permanent nature, and not to mere tempo in protecting the property from fire, and rary changes in the use and occupation of that gross negligence on his part will rethe premises; and it was accordingly held lieve the insurer, but that simple negligence that a mere temporary use of a machine for by a servant or the assured will not rethreshing grain for a few hours on the lieve the insurer, with reference to another premises would not per se work either a provision, that any change in the property forfeiture or suspension of the policy. But or use to which it is applied whereby the see infra as to this case.

risk is increased shall avoid the policy, it In Davis y, Western Home Ins. Co. 81 was held that the insurer is not liable if a Iowa, 496, 10 L.R.A. 359, 25 Am. St. Rep. loss directly results from a temporary 509, 46 N. W. 1073, however, a policy in change in the use of the property by the suring corn in cribs, which provided that assured, or one to whom he had intrusted it should be void in case of any change in the entire custody of the property and given the exposure by the erection or occupation full freedom in its use, where such change of adjoining buildings, or by any means so materially increases the hazard as to whatever in the control or knowledge of the make it apparent to a person of ordinary insured, was held to be avoided by the use intelligence and of reasonable or ordinary with the insured's permission of an engine care and diligence that the danger from fire and boiler near the corncribs for the purpose was thereby enhanced. of furnishing power to a corn sheller, the And it was held in that case that there court taking the view that the general was sufficient testimony to require the subprovision forbidding exposure by any means mission to the jury of the issue whether or whatever did not have regard to the not there had been such negligent use of form, substance, use, or character of the the property as to materially increase the thing creating the exposure, but included risk of insurance and cause the damage anything in which fire was used as complained of, where there was evidence to be dangerous, although it was not of that a threshing engine which had no spark a permanent character the same as build- arrester was placed about 85 feet from the ings.

house which burned for the purpose of And in Orient Ins. Co. v. McKnight, 96 threshing wheat; that the separator was Ill. App. 525, where it was contended that placed about half way between the engine the hazard had been increased by the use and the house; that as the threshing proof a steam sheller in violation of the terms gressed straw gathered near the separator of a policy covering corn in cribs which and some within a few feet of the dwelling; stood some distance from each other, it that the threshing required about two

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“prohibited articles" clause or the clause , since the spring of 1908, and had been inagainst increase of risk.

sured by the defendant during that time, 1. Prohibited Articles.—The standard poli- the policy in suit being a renewal of a cy contains this provision, among others: former policy in the same company: that

“This policy shall be void ... if cam- each year he had employed men to thresh phene, benzin, naptha, or other chemical his grain by the use of a gasolene engine cils or burning fluids shall be kept or used in precisely the same manner

on the by the insured, on the premises insured” | day of the fire; that these men traveled —with certain exceptions not material here. from farm to farm doing the work, and It is conceded that gasolene is within the that practically all of the grain in that prohibited list, and the crucial question is community is threshed in the same manner, whether, under the facts of this case, the engine being placed within or without "kept or used" within the inhibition of the the barn according to the location of the contract. The record shows that the plain- grain; that in 1912 the plaintiff, with one tiff had lived on this farm in Skowhegan Herbert, had purchased the engine and had hours, and when it was commenced there, tenant provided that the insurer should not was a gentle breeze blowing from the house; be liable for any loss "happening in consethat when the work was about half over quence of an invasion

or from any there was an unexpected, sudden, and un- locomotive engine or engines,” and further usually violent gust of wind which blew provided that the policy should be avoided from the engine towards the house; that in case of any material increase of risk to at about the same time fire was noticed the property insured, or in case of material in the straw; that despite all efforts the alterations. The property was burned by straw was carried against the house, setting reason of sparks from a steam thresher, it afire; that a threshing machine of this and the insurer claimed that the use of same character had been used by the owner such machine constituted a material inof the one in question for ten or fifteen crease of risk and avoided the policy beyears, and no fire had before resulted from cause of a change of circumstances resultits use.

ing in change of risk. The case was tried In Siemers v. Meeme Mut. Home Protec on an agreed statement of facts in which it tion Ins. Co. 143 Wis. 114, 139 Am. St. was stated that the fire was communicated Rep. 1083, 126 N. W. 669, the jury found to the buildings "by sparks from a steam that the risk was not increased within the threshing machine used on the premises by meaning of a clause providing for forfeiture a tenant for the purpose of threshing. if the risk was increased by any means, be. The statement of facts, however, contained cause the threshing engine which was being no statement that the assured himself used used to run a feed cutter was operated for the engine either in or near to the insured five or six minutes without the spark arrest- buildings, nor was it stated that his tenant er; and the court held that they would not be introduced the engine into the barn or corn warranted in setting the finding aside, there house or under the sheds and used it for being little evidence on either side bearing the purpose of threshing. on the question, and none to show that the It was conceded that the exception as to removal of the spark arrester was the proxi. locomotive engines did not inelude a threshmate cause of the fire.

ing engine, and it was held that there was In Farmers' Mut. F. Ins. Co. v. Moyer, no condition of the policy and no principle 97 Pa. 441, where an insured barn was of insurance law under which the insurer burned by reason of the explosion of a could be relieved from liability for the loss. boiler used with a threshing engine which The court said that, in deciding the case was placed near the barn, it was held that upon the facts, they did not wish to be the question whether the use of the machine understood as intimating that a different in the vicinity of the barn constituted an result would follow if the statement of increase of risk was properly left to the facts showed that the tenant had actually jury.

introduced the engine into the building and And in Long v. Beeber, 106 Pa. 466, 51 used it there, but stated that they expressed Am. Rep. 532, where the insured farm no opinion on that question. buildings were burned by reason of the use of a steam engine for threshing purposes, Specific provisions with reference to engines. and the policy provided that it should be void if the premises should be occupied or It has been held that a provision in a used so as to increase the risk, or the risk policy covering farm buildings, permitting should be increased by the erection or oc- the insured to use a steam thresher with cupation of adjoining buildings or by any an efficient spark arrester in good working means whatever, it was held that the ques- order for the purpose of threshing crops, tion whether the risk was increased by the does not forbid the use of a steam engine temporary use of the steam thresher was in connection with a grain crusher, but that properly submitted to the jury.

such provision is directed entirely to the In Martin v. Mutual F. Ins. Co. 45 Md. use of a steam thresher and engine there51, a policy issued on premises which the with. Johnston v. Dominion Grange Mut. insurer knew to be in the possession of a F. Ins. Co. 23 Ont. App. Rep. 729.

set it up in his barn for the purpose of "to keep a secret,” “to keep the peace," "to threshing his grain, and in about an hour keep a promise," "to keep a certain line of after the operation began the fire occurred, goods," "to keep store,” or to "keep house." in precisely what manner or from what im. Such is its definition by lexicographers. mediate cause it does not appear. Under | “To keep” is “to have and retain in one's these circumstances, did the plaintiff “keep control or possession" (Standard Dict.); “to or use" gasolene, within the meaning of the continue to hold;" “to conduct or carry policy? We think not.

on;" “to have habitually in stock for sale” In the first place, the words themselves! (Webster's New Int. Dict.). usually import something more than tempo- The verb "to use" in this connection, and rary possession or possession for a tem- in collocation with "keep,” naturally sugporary purpose. “To keep” implies some gests the same idea of employment on more thing more than merely to have. It carries than a single occasion. It implies the custowith it the idea of continuance and dura- mary or habitual rather than the accidental tion. Such is its common acceptation, as i or the temporary. These definitions have the

And in Siemers v. Meeme Mut. Home | there was no evidence that any other kind Protection Ins. Co. supra, where a fire ap- of engine was better adapted to general parently resulted from the use of a steam farm purposes than this one. engine generally used for threshing, to And on a subsequent appeal of this case drive a feed cutter, it was held that a pro- | 77 Vt. 28, 58 Atl. 799, it was held that vision that the insurer should not be liable the mere designation of some particular for loss caused by the use of steam-threshing make of engine as a “farm engine” did not machines unless a ladder was kept between entitle it to recognition as a farm engine the engine and the separator, and one bar to the exclusion of other engines of the rel of water and two pails were kept be- same style. The court said that the statetween the engine and the barn, and a ment in the prior opinion, that where there watchman was always in attendance, did is no kind of engine known as a "steam not prohibit the use of threshing machine farm engine,” the term must be understood engines for other purposes than threshing, to cover any engine adapted to farm purbut forbade their use in the ordinary opera- poses, did not imply that if the existence tions carried on around farm buildings un- of such an engine were established the opless the required precautions were taken. posite conclusion would necessarily follow,

In Schaeffer v. Farmers' Mut. F. Ins. Co. but if it were shown that there was an enSO Md. 563, 45 Am. St. Rep. 361, 31 Atl. gine so designated then would come the fur317, where a policy insured a dwelling, ther inquiries as to whether the differences farm buildings, and a tannery, it was held in construction and use between the kind so that an engine regularly employed in grind designated and other portable engines were ing bark for use in the tannery was not a so marked, and whether the application of "steam engine temporarily employed for the the name to that particular kind was so purpose of threshing out crops of any kind," general and exclusive, that the parties within the meaning of a provision prohibit might reasonably be supposed to have used ing such use, the court remarking that this and understood the term as having referprovision was intended to prohibit the use ence only to that kind. of engines for the purpose of threshing in And it was held upon this appeal that the vicinity of barns, and that as it imposed this policy was avoided by the use of a a penalty it should be strictly construed. portable engine adapted to all farm pur

It has been held that where a policy in- poses, although there was another engine suring farm buildings provides for a for- known as a steam farm engine which was feiture in case a "steam farm engine" is capable of being used for farm purposes; used within 100 feet of any insured build- it appearing that both were constructed ing, and there is no kind or class of en- alike so far as touched the danger from gines known as "steam farm engines," the fire, and that both were frequently desigwords must be understood in their ordinary nated as portable engines, and that the sense as descriptive of any engine adapted main difference between them was in reto farm purposes. Wilson v. Union Mut. spect to their mobility. Ibid. F. Ins. Co. 75 Vt. 320, 55 Atl. 662.

In Thurston v. Burnett & B. D. Farmers' And in this case it was held error to Mut. F. Ins. Co. 98 Wis. 476, 41 L.R.A. submit the case to the jury where the undis- 316, 74 N. W. 131, it was held that the puted evidence showed that an engine which proper construction of a provision that the was being used within the prohibited dis- insurer would not hold itself liable “for loss tance of buildings to cut ensilage was an caused by the use of steam engines on the upright portable engine of four and one-half premises, except steam threshing engines horse power originally purchased to draw using coal as fuel, with sufficient wood to logs and for use about a mill, but which kindle or start the fire,” was a question for had alternately been used for these pur- the court, and it was held error to leave its poses and for cutting ensilage and filling construction to the jury; the court holding silos, and there was testimony that it was that it came within the rule that where adapted to all farm purposes where only a the language of a contract is plain and small amount of power was required, and ' unambiguous, and where words or terms

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