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sanction of authority. In Thompson V.,that sort was 'storing or keeping' benzin. Equity F. Ins. Co. [1910] A. C. 592, 3 B. The learned counsel for the respondents conR. C. 1, 19 Ann. Cas. 412, a building was tend that the presence of gasolene on the insured, and the words were “keep or store," premises was enough to bring the statutory instead of “keep or use,” as here; and the condition into operation, and he referred court held that a small quantity of gasolene to the accident which did happen as in a stove being used for cooking purposes, example of the danger against which prewhich caused the fire, no other gasolene be- cautions are required. But it is obvious ing in the building, was not an infringe- that the danger guarded against is not ment of the condition. The court say: ignition caused by the article itself, but the "What is the meaning of the words, 'stored risk of spreading or increasing the conor kept,' in collocation and in the connection flagration when once started and in prog. in which they are found? They are com- ress by the presence of highly inflammable mon English words with no very precise or explosive material. The fact that the or exact signification. They have a some fire in the present case was caused by the what kindred meaning and cover very much gasolene is irrelevant. And the fatal ob. the same ground. The expression as used in jection to the defendant's contention is that the statutory condition seems to point to it gives no effect whatever to the words, the presence of a quantity not inconsider- 'stored or kept,'

and the meaning able, or at any rate not trifling in amount, which the defendants seek to attribute to and to import a notion of warehousing or it might possibly or even probably prevail depositing for safe custody or keeping in if the words in question had been omitted stock for trading purposes. It is difficult, altogether, and the condition had excluded if not impossible, to give an accurate defini- liability for 'loss or damage occurring while tion of the meaning; but if one takes a con

gasolene

is ... in the crete case it is not very difficult to say building insured.' Some meaning must be whether a particular thing is 'stored or given to the words, 'stored or kept.'' kept,' within the meaning of the condition. While the words in the case at bar are No one probably would say that a person "kept or used,” instead of “kept or stored," who had a reasonable quantity of tea in his as in the English case, and therefore the house for domestic use was 'storing or idea of storage is embraced in the one inkeeping tea there; or (to take the instance stead of use in the other, yet both have the of benzin, which is one of the proscribed word “keep,” and, so far as the reasoning in articles) no one would say that a person the cited case refers to that word, it carwho had a small bottle of benzin for remov- ries weight in our present discussion. “The ing grease spots or cleansing purposes of word ‘kept', as used in the policy [of the may be reasonably construed in either of policy on farm buildings that in case of two ways, but extrinsic evidence is not re- fire, or exposure to loss or damage thereby, sorted to for the purpose of aiding in the it shall be the duty of the insured to use construction, the proper construction of the their best endeavors for saving and precontract is for the court.

serving the property, is not violated by It was held in that case that the clause taking off the spark arrester of a threshing involved in that case prohibited the use of engine for a few minutes while the machine wood except to efficiently start combustion is in operation, since the purpose of such in the coal, and that the use of wood there- provision is to define the duty of the inafter was within the excepted risk, and that sured when the property covered by the when wood was so used up to a short time policy is on fire, or when it is menaced by before the fire occurred, such fire was not fire. Siemers v. Meeme Mut. Home Proteccaused by an engine "using coal for fuel tion Ins. Co. 143 Wis. 114, 139 Am. St. with sufficient wood to kindle or start the Rep. 1083, 126 N. W. 669. fire” merely because coal was the last fuel In Siemers v. Meeme Mut. Home Protecput into the fire box before the fire occurred. tion Ins. Co. supra, the evidence as to com

The evidence in this case being to the pliance with provisions as to keeping a ladeffect that the engine was started and run der, an abundance of water, and the refor half an hour with wood for fuel exclu- quired number of pails, was uncontradicted, sively, when a man was sent for coal, and and was held to present no question for the he brought one lump. part of which was jury, and their finding that a watchman used about fifteen minutes before the fire was employed was held to be supported by occurred, and the engineer testified that he the evidence. sent for coal because he thought it would be a helper, it was held that there was

Miscellaneous. really no question for the jury, and that their finding that no more wood was used In the absence of a condition excluding with the coal than was sufficient to kindle liability on account of the insured's neglithe fire was contrary to the undisputed gence, his right of recovery will not be evidence.

defeated because of his negligent use of a It has been held that a provision in a steam engine on his premises, where such same form as in the case at bar], implies, found in the recent case of Springfield F. & a use of the premises as a place of deposit M. Ins. Co. v. Wade, 95 Tex. 598, 58 L.R.A. for the prohibited articles for a considera- | 714, 93 Am. St. Rep. 870, 68 S. W. 977, ble period of time,” says the Massachusetts where the words of prohibition were “kept, court in First Cong. Church v. Holyoke Mut. used, or allowed,” and they were held not F. Ins. Co. 158 Mass. 475, 19 L.R.A. 587, 35 | to cover a case where a gallon of gasolene Am. St. Rep. 508, 33 N. E. 572. A similar was brought onto the premises for tempodefinition, excluding the idea of mere tem- rary use, although such act in fact caused porary presence, is given in Clute v. Clin the destruction of the property. “It is not tonville Mut. F. Ins. Co. 144 Wis. 638, enough,” say the court, “that hazardous ar32 L.R.A.(N.S.) 240, 129 N. W. 661; Smith ticles are upon the premises. They must v. German Ins. Co. 107 Mich. 270, 30 L.R.A. be there for the purpose of being stored or 368, 65 N. W. 236. And see note in 13 Ann. kept.

As the word ‘kept' means Cas. 542.

that the prohibited article must not only The definition of “use” was discussed by be upon the premises, but must be there for the court in Mears v. Humboldt F. Ins. keeping or storing, and not merely upon a Co. 92 Pa. 15, 37 Am. Rep. 647, as follows: temporary occasion for a different purpose, "We are not disposed to give to the word it follows that there must be some degree ‘use' in this policy the narrow construction of permanency in its continuance there. claimed for it. It must have a reasonable The word implies all this. The word ‘used' interpretation, such as was probably con- is employed in immediate connection with templated by the parties at the time the the word ‘kept,' in order, we think, to excontract was entered into. ... What is tend the provision so as to exclude the idea intended to be prohibited is the habitual that the article must be stored or deposited use of such articles, not their exceptional on the premises. But the purpose in the use upon some emergency. The strict rule use of each word is to provide against the claimed by the defendants would prevent same danger, viz., that which would arise the assured from painting his house or from the habitual, constant, or continued cleaning his furniture, as it would be dif- exposure of the property through the presficult to do either without using some of ence or use of the article. One word forbids the prohibited articles.”

the permanent or habitual keeping of the The court followed the same definition of dangerous thing, and the other a like use of “use” in Lebanon County v. Franklin F. it, without the actual depositing or storIns. Co. 237 Pa. 360, 44 L.R.A.(N.S.) 148, ing of it.” See also Hynds v. Schenectady 85 Atl. 419, Ann. Cas. 1914B, 130.

County Mut. Ins. Co. 11 N. Y. 554; FarmA careful definition of “kept or used” is ' ers' & M. Ins. Co. v. Simmons, 30 Pa. 299; negligence was not wilful. Johnston v... other purpose, or should carry on therein Dominion Grange Mut. F. Ins. Co. 23 Ont. any of the trades” specified in the preceding App. Rep. 729.

clause. In Farmers' Mut. F. Ins. Co. v. Hull, 77 In Wilson v. Union Mut. F. Ins. Co. 75 Md. 498, 27 Atl. 169, where the insured Vt. 320, 55 Atl. 662, a printed schedule bought a portable steam engine, and placed described most of the property insured, but it within 30 feet of his barn, and used it in writing there was an indorsement, "$50 for chopping and threshing grain, the court on engines, shafting, and belting,” and it said that the use of such engine under the appeared that the boiler house in which the circumstances, without the insurer's per- boiler that propelled two engines was placed mission, beyond all question resulted in a was within 100 feet of insured buildings, forfeiture of the policy. The exact provi. and the insured contended that the insurer sion governing the forfeiture does not ap- must have contemplated that these engines pear, and the question at issue was as to would be used for ordinary farm purposes, whether there had been a waiver of the and that the written portion of the contract forfeiture.

should be construed to control the printed In Farmers' Mut. F. Ins. Co. v. Moyer, i provision, and that so construed no for97 Pa. 441, it was held that the use of a feiture would result from the use of another portable steam engine placed within 32 feet engine which had been brought upon the of the insured barn for threshing purposes premises to cut ensilage; but the court held did not constitute a violation of a provision otherwise, saying that if the question were of the by-laws prohibiting the insuring of in respect to the use of the engines insured any building "situated within 50 yards of a by the policy the contract would be conrailroad on which steam power is employed, strued to mean that their use was conternor of any forges, foundries, furnaces, rolling plated by the insurer in view of their situamills, powdermills, paper and oil mills, cot- tion and the safeguards around them, but ton mills, or, in general, any mills, facto- that the engine in controversy was not inries, or machineries driven by steam power," sured, and was not upon the premises when or of another by-law providing for a sus- the policy was issued, and had not the propension of the risk "if the owner of any tection of a boiler house when used. insured building should convert it to some

J. T, W.

Mears v. Humboldt F. Ins. Co. 92 Pa. 15, 37

1

"An increase of risk which is substantial, Am. Rep. 647; Szymkus v. Eureka F. & M. and which is continued for a considerable Ins. Co. 114 Ill. App. 401; and Adair v. period of time, is a direct and certain inSouthern Mut. Ins. Co. 107 Ga. 297, 45 jury to the insurer, and changes the basis L.R.A. 204, 73 Am. St. Rep. 122, 33 S. E. 78, i upon which the contract of insurance rests." the last involving the temporary use of Kyte v. Commercial Union Assur. Co. 149 machine for threshing grain on the premises Mass. 116, 123, 3 L.R.A. 508, 21 N. E. where the insured property was located. 361, 362.

2. Increase of Risk.—The language is that Here, then, as in the prohibited articles the policy shall be void if, without the writ- clause, the words themselves ordinarily imten consent of the insurer, "the situation, port something more than a mere temporary or circumstances affecting the risk, shall, exposure to additional hazard, and it is the by or with the advice, agency, or consent of opinion of the court that it could not be the insured, be so altered as to cause an said, as a matter of law, that the act of the increase of such risks.” What constitutes plaintiff constituted a breach of this condian alteration of the situation or circum- tion. stances affecting the risk as to cause an Let us take another and broader view. increase of risk? Here we must distinguish Both the prohibited articles clause and the between occasional negligent acts of the in- increase of risk clause must be construed sured, which may not only tend to increase in the light of the entire contract, the situthe hazard for the time being, but perhaps ation and character of the property insured, even cause the fire, and an alteration of the and the natural and necessary use to which situation or circumstances. In a certain it must be put, and the application of this sense all negligent acts of the insured have universal rule of construction confirms the a tendency to increase the risk, and yet the inferences already drawn from the precise policy is not thereby avoided, because one's language of the clauses themselves. own carelessness is one of the very things The buildings insured were not city propinsured against, otherwise insurance would erty, but farm buildings, consisting of a afford little protection, and the policy hold- dwelling house, storehouse, and frame barn, er would be insuring himself. The insured together with various farming machinery, who works in his barn or upon the haymow, implements, vehicles, etc. It could not have or in his woodshed, with a lighted pipe or been in the mind of either the plaintiff or cigar, evidently increases the risk; so does the defendant that the barn in which the the housewife who builds too brisk a fire, fire started was to be locked and lie idle. leaves the stove filled with wood and the Both the parties knew that the plaintiff draughts wide open, or deposits hot ashes was to continue to use his buildings in the in a wooden receptacle. But acts like ordinary course of husbandry, as the ordithese, while they may temporarily increase nary farmer uses them in the pursuit of the hazard, do not so alter the situation or his legitimate occupation. The policy was circumstances affecting the risk as to avoid not intended, nor should it be permitted, the policy. They may constitute negligence to prevent such use. The threshing of grain on the part of the owner, but neither the is as much a necessary incident of farm situation of the property itself nor the ir- work as is harvesting and storing in the cumstances surrounding it can with reason barn. Formerly threshing was done by be said to be altered.

horse power, but that method has become “Those words imply something of dura. well nigh, if not wholly, obsolete; and the tion, and a casual change of a temporary uncontradicted evidence shows that praccharacter would not ordinarily render the tically all the grain in the plaintiff's compolicy void under this provision.” First munity is now threshed with the aid of a Cong. Church v. Holyoke Mut. F. Ins. Co. gasolene engine. This is common knowl158 Mass. 475, 19 L.R.A. 587, 35 Am. St. edge. The defendant, which makes a speRep. 508, 33 N. E. 572.

cialty of farm risks, must have known it. See also, Loud v. Citizens' Mut. Ins. Co. Its local agent, through whom the first 2 Gray, 221; Com. v. Hide & Leather Ins. policy was issued, was himself a farmer Co. 112 Mass. 136, 17 Am. Rep. 72; King and lived within 3 or 4 miles from the Brick Mfg. 'Co. v. Phenix Ins. Co. 164 plaintiff's premises, and must have been Mass. 291, 41 N. E. 277.

familiar with the general situation and One object in requiring the written con- custom; and the local agent who issued sent of the company in case of increase of the policy in suit, a renewal of the first, risk doubtless is to enable the company to also resides in Skowhegan. Knowledge of charge an additional premium therefor, dur-conditions existing at the time the contract ing the continuance of the increase, and is made, is always taken into consideration this presupposes a period of substantial in construing the rights of the parties duration.

thereunder, as in the case of vacancy. Gup

manner

as

use.

till v. Pine Tree State Mut. F. Ins. Co. 109 for the purpose of mixing paints, Archer v. Me. 323, 84 Atl. 529.

Merchants' & Mfrs. Ins. Co. 43 Mo. 434; The plaintiff was making the same use keeping camphene in a printing establishof his barn and was carrying on his ordi- ment for use in cleaning type, Harper v. nary occupation in the same

New York City Ins. Co. 22 N. Y. 441; pewhen the policy was issued, and the same troleum in a flour mill for lubricating puras all other farmers were customarily do poses, Carlin v. Western Assur. Co. 57 Md. ing. It was

a reasonable and necessary 515, 40 Am. Rep. 440. In all of these inIt was impracticable, if not impos- stances, and in many more gathered in the sible, to secure the threshing of his grain note in 13 Ann. Cas. 540, the use of the by any other process; and under such cir- prohibited article was not merely once a cumstances, which must have been known year for a short time, as here, but conto the insurer when the policy was issued, tinuous; nevertheless, as it was necessary we cannot hold that the plaintiff was there to the conduct of the business, its use for by violating the conditions of his policy. such a purpose was held to be within the If such an act constituted a forfeiture, then implied permission of the insurer.

The he had been uninsured, since the engine was same reasoning and the same rule apply used on the first occasion after the policy with equal force to agricultural pursuits was issued, because a breach occurred then, and the ordinary and necessary use of farm if at all; and we have recently held that a buildings in connection therewith. policy once forfeited cannot be revived, ex- Based on the same principle is a class of cept by waiver or mutual agreement. Dolli- | cases growing out of the use of prohibited ver v. Granite State F. Ins. Co. 111 Me. 275, articles in making repairs. It is not to be 50 L.R.A.(N.S.) 1106, 89 Atl. 8.

presumed that, when an owner effects insurAnd not only under such a construction ance on his building, he precludes himself would this policy have been long since for from the right, not only to use it in the cusfeited, but it is safe to assume that prac. tomary manner, but also to make the usual tically all the farmers in that section would and ordinary repairs in a reasonable and find their policies in the same condition. If proper manner, in the absence of anything a fair and reasonable interpretation of the l in the policy expressly prohibiting the same. policy requires it, of course the injustice of It has been frequently held that such rethe result must not be interposed to pre pairs, thus properly made, do not avoid the vent it. Parties must be bound by the policy, even where the fire hazard is obcontracts they make. But a result so disas- viously increased. In Dobson v. Sotheby, trous and universal raised a strong pre- Moody & M. 90, 31 Revised Rep. 718, the sumption that it was not within the con policy was issued at a low rate payable on templation of the parties, and the contract buildings in which no fire was kept and should not be so construed, except by com- no hazardous goods deposited. The buildpulsion of the language.

ing required tarring; a fire was lighted in This rule that the policy is not avoided the inside; a tar barrel brought into the where the use made of the prohibited ar- building for the purpose of performing the ticles, or the general use and operation of necessary operations. The tar took fire the property was necessarily incident to through the negligence of the workmen, and the business of the insured, and therefore the premises burned. Lord Tenterden said: presumed to be recognized and impliedly “The common repairs of a building necespermitted by the insurer, is well settled and sarily require the introduction of fire upon of wide and general application.

the premises, and one of the great objects Thus, in manufacturing establishments of insuring is security against the neglithe keeping or using of an article neces. gence of servants and workmen. I cannot, sarily incident to the manufacturing proc. therefore, be of opinion that the policy in ess or to the carrying on of the business this case was forfeited.” will not avoid a policy, even though keep- The same rule has been applied where ing or using be expressly prohibited, as the paint was being removed from the outside use of gasolene in a silver-plating factory, of a wooden building by means of a naphtha Lancaster Silver Plate Co. v. National F. or gasolene torch, and these decisions well Ins. Co. 170 Pa. 151, 50 Am. St. Rep. 753, illustrate what we conceive to be the true 32 Atl. 613; keeping a small quantity of legal principle. benzin for use in a furniture repair shop, In First Cong. Church v. Holyoke Mut. Faust v. American F. Ins. Co. 91 Wis. 158, F. Ins. Co. 158 Mass. 475, 19 L.R.A. 587, 30 L.R.A. 783, 51 Am. St. Rep. 876, 64 | 35 Am. St. Rep. 508, 33 N. E. 572, the N. W. 883; keeping benzin for finishing plaintiff contended that the use of the purposes in a furniture factory, Davis v. torch and the change in conditions affecting Pioneer Furniture Co. 102 Wis. 394, 78 N. the risk occurred through making ordinary W. 596; keeping benzin in a wagon factory 'repairs in a reasonable and proper way, and

that in the prohibitive provision of the nonsuit was therefore improperly ordered. policy there was an implied exception of 3. Failure to Furnish Proof of Loss.--The what is done in making ordinary repairs. defendant also set up in its brief statement Acting upon this, the trial judge submitted of defense the plaintiff's failure to furnish this single question to the jury: “Was the a proof of loss, but this point is not urged method used the method ordinarily pursued in argument. to remove the paint on the outside of a It is proper, however, to say that, in view building preparatory to scraping it off to of the correspondence between the parties repaint it?"

and of the fact that the defendant denied Affirmative answer being returned, the all liability, the jury might well have found presiding judge ordered a verdict for the that it had waived this requirement. Such plaintiff. The law court set aside the ver- waiver is a question of fact (Robinson v. dict on the ground, that the question sub- Pennsylvania F. Ins. Co. 90 Me. 385, 38 mitted did not sufficiently present all the Atl. 320), and the court cannot say that, matters of fact in issue, including the ma- under the evidence in this case, the plainterial of which the outside of the building | tiff is precluded from recovery on that was composed, its character and condition, i ground. the season of the year, etc., but was too Exceptions sustained. general in its form. The court held that "such provisions [in the policy) are not intended to prevent the making of necessary repairs and the use of such means as MICHIGAN SUPREME COURT, are reasonably required for that purpose;" and that if the use of naphtha, at the time

JONATHAN AGAR et al. and in the manner in which it was used, was reasonable and proper in the repair

DANIEL W. STREETER et al., Appts. of the building, having reference to the danger of fire as well as other considera

(- Mich. —, 150 N. W. 160.) tions, then the policy was not thereby for

Option acceptance

tender of money. feited.

1. Tender of the money is sufficient to In Garrebrant v. Continental Ins. Co. 75 make an option to purchase real estate bindN. J. L. 577, 12 L.R.A. (N.S.) 443, 67 Atl. ing upon both parties, and written accept90, a torch was used for the same purpose, ance is not necessary. and the court held that the policy was not Vendor and purchaser failure thereby avoided, as it permitted mechanics name wife in contract effect. to be employed for a period of fifteen days 2. Failure to name the wife in a contract in making repairs, that time had not ex- apparently made by the husband alone, to pired when the fire occurred, the necessity convey their joint property, does not, if

the instrument is properly executed her, of repairs existed, and the method was reasonable and proper.

prevent its binding her interest. In Lebanon County v. Franklin F. Ins. Co.

(December 19, 1914.) 237 Pa. 360, 44 L.R.A.(N.S.) 148, 85 Atl. , .

PPEAL by defendants from a decree of

V.

to

the working or mechanics was prohibited. A the Circuit Court for "Tuscola County,

a

in general terms, it was held not to cover in chancery, in complainants' favor in a

case of ordinary repairs necessary for suit to compel specific performance of a the proper care and preservation of the

Note. - Effect of deed or mortgage on property, and that, although a torch was

one who signs, but is not named used, the presiding judge did not err in

in, it. refusing to direct a verdict for the defendant, either on the ground of keeping or

The court in AGAR v. STREETER frankly using prohibited articles or of increase of says:

"It is probable that if the weight risk, and that the case was properly sub- decisions, old and new, my conclusion is

of authority depends upon the number of mitted to the jury.

opposed to the weight of authority." There Our conclusion on this branch of the would seem to be no doubt as to the correctcase, therefore, is that the plaintiff was ness of the statement. See note to Sterling neither keeping nor using gasolene, within v. Park, 13 L.R.A. (N.S.) 298, to which the the inhibition of this policy, nor did his present note is a supplement. To the cases acts constitute a breach of the increase of there cited to the proposition that "a conrisk clause, as a matter of law. The most veyance naming several grantors and signed that the defendant can successfully claim by those named, as well as by another per

son who is not named therein as a grantor. is that the question of increase of risk is a

will be ineffectual to convey the latter's question of fact and should be submitted interest in the land described in the conto the jury under proper instructions. The' veyance," may be added the following later

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