Appellant's first question submitted for review is as follows:
"Where public dances are held once a week in a farm barn at which cigarettes and cigars are sold and smoked on the premises, was it a question for the jury, whether or not the fire hazard was increased under the terms of a policy which provides that it shall be void if the hazard be increased by any means within the control or knowledge of the insured?"
Appellant asserts that a question of fact is presented. Appellant's statement of facts contains the following:
"At the time of the fire there was a dance being held in the barn attended by a company of persons, some of whom were smoking. * * * Dances had been held in the barn other Saturday nights quite regularly. When cold weather set in a stove was installed. There was a hot dog stand with an oil *Page 391 stove and a cigar stand where cigars and cigarettes were sold. A false ceiling (of building paper) was put in the barn and it was lighted with gas lamps."
In the face of these and other undisputed facts a finding by a jury that the fire hazard had not been increased would necessarily be set aside as contravening the testimony. The trial judge was right in holding as a matter of law that plaintiff's tenant had increased the fire hazard. Plaintiff admits that he knew his tenant was conducting dances in the barn as early as August 1, 1930. Such dances held nearly every Saturday night were attended by a large number of people. They continued until the night of the fire December 8, 1930. Plaintiff's lease to Bovier expressly provided that in no case were the premises "to be used for any business deemed extra hazardous on account of fire." Clearly.the extra hazardous condition brought about by plaintiff's tenant was not only within plaintiff's knowledge but it was a matter under his control if he saw fit to act. Under the record here presented plaintiff was responsible for and chargeable with knowledge of his tenant's acts which increased the fire hazard.
The judgment is affirmed, with costs to appellee.
SHARPE, FEAD, WIEST, and BUTZEL, JJ., concurred with NORTH, J. *Page 392
Loading…