Williams v. . People's Fire Insurance Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 276 If the presence of the petroleum in the room where the insured property was, had been only casual or temporary, for some use connected with the store or the merchandise therein, or the occupants thereof, it would probably *Page 277 not have increased the risk within the meaning of the policy. But here it was kept permanently for five or six months. If it had been part of the merchandise insured, or if its presence had been expressly permitted by the policy, it could not be said to have violated the condition. The sale or storage of petroleum and its use for lighting the store, were expressly prohibited unless there was permission, indorsed in writing upon the policy. This prohibition was not violated, because it was not kept in the store for any of these purposes. This petroleum was not, therefore, expressly permitted or prohibited, and the sole question is, whether its presence increased the risk and thus violated the policy. This question cannot be determined as a matter of law by the fact that the quantity was so small. If plaintiff had kept a whole barrel there, or a tank full for the same purpose, however much it might have increased the risk, he would not have violated any express prohibition in the policy. In such case the defendant would have a right to complain, only in case the risk were increased. In every case, it must be a question of fact for the jury to determine upon the evidence, no matter how small or how large the quantity may be, whether it actually, and materially increased the risk. It would be of little use for the insurance company to expressly prohibit the sale or storage, or the use of petroleum for lighting, if it could be kept on the premises for other purposes, in just as large quantities, and with just as much danger without avoiding the policy. It can make no difference, that this small quantity of petroleum did not actually contribute to the fire. If its nature was such as to increase the risk, it avoided the policy. (Mead v. The Northwestern Insurance Co., 7 N.Y., 530.) To test this case, suppose the petroleum not only increased the risk, but had actually caused the fire, it would, then, certainly have been very unjust to have held the defendant liable for the loss. I am, therefore, of opinion, that the judge erred in not submitting the evidence upon this question to the jury, and in refusing to charge as requested. It may be, that the jury would have found, in consideration of the fact *Page 278 of the small quantity of petroleum, and of the fact that although present it did not ignite or contribute to the fire, that it did not materially increase the risk. But, however this may be, it was their province, and not that of the judge, to determine this question. The learned counsel for the plaintiff has called our attention to the case of Townsend v. Northwestern Insurance Co. (18 N Y, 168), as in conflict with these views. That was a case of insurance against fire, under a policy containing a condition like the one under consideration here, upon a cotton factory, in which, at the time of the insurance, there was a forcing pump, designed to be used as a protection against fire, worked by a water wheel. The insured, during several days, for the purpose of repairing the factory, cut off the supply of water and thus disabled the pump, and, during this time, the fire occurred. The court held, that the risk, incident to the making of necessary repairs, was assumed by the insurers in the absence of any stipulation to the contrary in the policy. But, if in that case, the insured had permanently disabled or removed the pump, for a purpose not impliedly or expressly permitted in the policy, it cannot be doubted that the court would have held the policy avoided. That case, therefore, is in perfect harmony with the views above expressed. It is claimed, that this defence was not set up in the answer, and, hence, that it cannot be allowed to avail the defendant here. It is true that it was not set up, but witnesses were called to sustain it, and it was litigated upon the trial without any objection to the form or sufficiency of the answer. Evidence was given without objection, on both sides, as to this defence, which was not pertinent to any defence set up, or any issue made by the pleadings. Hence, within the principles laid down in the case of Williams v. Mechanics and Traders' Fire InsuranceCompany,* decided at the last term of the Commission, and cases there referred to, the defendant must have the benefit of the defence as if it had been regularly set up. *Page 279 I have examined the other objections made by defendant to plaintiff's recovery, and find none of them well taken. The judgment, for the reason above stated, must be reversed, and new trial granted, costs to abide event. * 54 N.Y., 577.