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day trip to Newfoundland to procure bait. She then fished for several weeks on the Banks, and then sprung a leak and sunk. The insured was not allowed to recover on the policy, because of the breach of the warranty of no deviation (4). Of course if the deviation is necessary to avoid storms, or to put into a port for repairs (5), or where the vessel is driven from her course by a storm (6), the policy is not extinguished.

§ 59. Warranty against illegality. This warranty in one form or another exists in all branches of insurance. Its details will be discussed under the same head in fire insurance. The only peculiar qualification to note, in connection with marine insurance, is that an attempt to violate the revenue laws of another country by smuggling is probably not such illegality as will avoid the policy (7). SECTION 2. FIRE INSURANCE: CONDITIONS APPLICABLE BEFORE LOSs.

§ 60. Introductory. The conditions in a fire policy may be divided into two classes: first, those applicable before loss, relating to the condition of the premises, the conduct of the business, or other matters of a similar nature; second, those applicable after loss, relating to the presentation of proofs and similar questions These conditions are grouped separately in most policies and it will be easiest to consider them separately, taking first the conditions applicable before loss.

(4) Burgess v. Insurance Co., 126 Mass. 70.

(5) Hall v. Insurance Co., 9 Pick. (Mass.) 466.

(6)

Graham v. Insurance Co., 11 Johns. (N. Y.) 352.

(7) Planché v. Fletcher, 1 Doug. 251.

§ 61. Language of policy: Meaning of "shall be void.' All fire policies contain a large number of provisions regulating the character of the risk. The policy generally provides that it "shall be void" (7a) if the insured shall do or fail to do the acts therein mentioned. Hence there can be no question that these requirements are warranties, upon the exact performance of which the validity of the policy depends.

The word "void", however, as used in insurance policies, means only voidable at the election of the company. It is well settled that the company may waive forfeitures, either expressly or by acts which recognize the policy as being in force. Further than this, it is held in some states that the policy is only suspended during the time when the condition is violated, and revives again on the condition being no longer broken, provided that the breach of the condition does not contribute toward the loss (8). This doctrine is held of course for the purpose of avoiding forfeiture of the policy, but, as has been already pointed out, while it is a well established principle that the court will not enforce a forfeiture unless it is clear that the forfeiture has been contracted for, there would seem no real doubt as to the language of the parties in such a case as this, and the general rule in this country is that, if there is an unwaived breach of any condition of the policy, the policy may be definitely voided at the option of the company, and not merely suspended (9). The requirements of the policies vary. For this reason it will not be possible to

(7a) This is the New York Standard form. App. E, 11. 29, 37. (8) Lane v. Insurance Co., 12 Me. 44.

(9) Moore v. Insurance Co., 62 N. H. 240.

examine them all in detail, but the more important ones of the New York Standard policy may be taken as typical.

§ 62. Other insurance. Some forms of policies provide that the policy shall become void, if "the insured shall have or procure other insurance on the property covered by this policy." The purpose of such a provision is obvious. If the insured can take out several policies upon the same property, the chances for recovering more than the actual loss are greatly enhanced, and the moral risk for the same reason correspondingly increased, and it is to prevent this contingency that conditions against further insurance have been inserted in the policy. It is to be noted that there is no double insurance, unless the two policies cover the same interest. Thus, for example, a mortgagor and mortgagee may each take out insurance on the premises covered by the mortgage, without there being any double insurance.

§ 63. Same: Two views of meaning. The phrase quoted above, which is a very common one, has occasioned a great deal of difficulty in its construction. Suppose, for example, A takes out a policy having that clause in it, and then takes out on the same premises a second policy, also having that clause in it. Which policy is good and which bad, or are they both bad? It is arguable that, as the first policy provides that it shall be void if other insurance is taken out, the first becomes void at once upon the taking out of the second, and that hence there can be no recovery on the first (10). On the other hand, the argument can be turned around, and it can be said that, since the

(10) Stevenson v. Insurance Co., 83 Ky. 7.

second policy had a similar clause, that that policy, because of the prior existence of the first policy, never came into effect, and hence that the first is good and the second bad (11). This latter is the generally prevailing view, although the objection may be urged to either view that it is well settled that the word "void" in insurance policies means only voidable at the option of the company (§ 61, above). The New York Standard policy puts this matter beyond doubt by its language making the policy void, if other insurance, whether valid or not, shall be taken out on the property (12).

§ 64. Increase of hazard. The New York Standard policy provides that it shall be void, "if the hazard be increased by any means within the control or knowledge of the insured" (13). The courts have held that this does not apply to all acts that increase the hazard on the property insured, but only to those acts which make a permanent alteration in the degree of risk that the company is carrying. Thus, in one case, the insured used kerosene to kindle a fire, with the result of temporarily increasing the risk and in fact burning up the premises. The court held, however, that the condition as to the increase of hazard had not been broken, and that he could recover on the policy (14). Of course the increase of hazard may be of varying duration, and it would seem that if the act done by the insured is a reasonable one, that it will not violate this clause of the policy even though kept

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up for some considerable time. Thus, in one case, the insured changed the bulkhead that gave him his water supply so that the water was cut off for a number of days and the risk of course increased. The court held that the policy was not void, if the alteration was done in a reasonable way (15). On the other hand, where the insured was the owner of a frame building, and, after a long season of extra dry weather, started in to have the building painted, and as a preliminary step began to burn off the old paint by means of a naptha burner, which processes were kept up for four weeks while the dry weather still continued, the court found that the policy was void, saying: "These words imply something of duration, and a casual change of a temporary character would not ordinarily render the policy void under this provision. We are of opinion that the change of condition was sufficiently long continued to be deemed a change in the situation or circumstances affecting the risk” (16).

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§ 65. Increase of risk by tenants. The mere fact that an increase of risk within the meaning of the policy was made by a tenant of the insured would clearly not violate the policy, unless the latter ordered or knew of this increase (17).

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§ 66. Employment of mechanics. This clause: "If mechanics be employed . . for more than fifteen days at any one time" (18) was inserted to limit the possibility of repairs being made of considerable duration, but

(15)

Townsend v. Insurance Co., 18 N. Y. 168.

(16) First Congregational Church v. Ins. Co., 158 Mass. 478. (17) Merriam v. Insurance Co., 21 Pick. (Mass.) 162.

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