Mack v. Rochester German Insurance

HaediN, P. J.: . Forfeitures are not favored. If the ruling at circuit is upheld, it sustains a forfeiture of the whole policy issued.by the defendant. Was there such an alteration as to cause a forfeiture? Was there such a -forking of carpenters and other mechanics in building, altering or repairing the building covered by the policy as was prohibited [78] by the eighth clause of the conditions found in the policy ? It has been held that a similar clause in a policy did not apply to ordinary or necessary repairs, because they are assumed to be consented to by implication, and it would not be reasonable to construe the provisions so as to make a contract to idemnify the building from fire, provide for its destruction by other elements. (Franklin Ins. Co. v. Chicago Ice Co., 36 Md., 102.) It may be observed that the evidence in the case before us does not disclose an attempt to change the structure or framework oi the building. From the evidence it cannot be said that the carpenters were working or had been working in the structure insured “ in building,” and building covered by the policy, nor can it be said that the evidence discloses a case showing that carpenters or other mechanics had been engaged in substantially “ repairing and building or buildings ” covered by the policy. There remains, therefore, upon the evidence a querry as to whether or not there has been “ working of carpenters or other mechanics ” in “ altering ” the building covered by the policy. Of course it is not every slight change, such as driving a nail or cutting a-stove-pipe hole in a partition, placing a screw in a cornice for the purpose of hanging a picture, which should be regarded in the letter and spirit of the stipulation under consideration. Such stipulations intended to work forfeitures must receive a reasonable construction, reference being had to the object sought to be obtained by parties in giving and receiving. Such conditions are not to be extended by implication so as to include cases not clearly or reasonably within the words as ordinarily used and understood. (Rann et al. v. Home Ins. Co., 59 N. Y., 387.) "We incline to the opinion that the evidence found in the “ appeal book ” fairly presented a q uestion of fact upon which the jury should have been allowed to pass, and find whether or not there had been such an alteration in the building covered by the policy as that,which it was the intention of the parties to stipulate against in the language quoted in the eighth provision of the policy. (Burleigh v. Gebhard Ins. Co., 90 N. Y., 220.) The judgment should be reversed and a new trial ordered, with costs to abide the event. Boardman and Follett, JJ., concurred. Judgment and order reversed and new trial ordered, with costs to abide the event.