Mutual Fire Insurance v. Coatesville Shoe Factory ex rel. of Babb

Judgment was entered in the Supreme Court, Per Curiam. Under the charge of the learned judge, the jury must have found that the injury from the fire in this case did not [412] arise’ from the introduction and use of gasoline as a means of lighting the building. The injury not having arisen from any increased risk growing out of this cause, the first proposition of the plaintiff in error is disposed of. But it is contended that there are provisions in the policy which forbid such an increase of risk, and therefore that the policy is void, whether the loss resulted from this cause or not; and the complaint' is, that the question of an increase of risk was submitted to the jury. If the postulate is .admitted, the conclusion certainly is that there was error in not so charging. But there is no clause or provision in the policy which makes it void for a temporary increase of the risk. It is true that lighting the building by gas made from petroleum requires a higher rate of premium, and by another provision in the policy this is evidence of an increase of risk over a building not so lighted, which the assured cannot controvert. But there is no provision that such an increase of risk makes the policy void, ipso facto. It undoubtedly renders the policy liable to be avoided if a .loss arise from this cause. In the absence of a stipulation to this effect, the validity of the policy necessarily depends on the state of the premises at the time of the loss. But in this case the evidence shows that this mode of lighting had been discontinued some time before the fire, and the verdict establishes that the fire did not result from the gasoline. We must, therefore, find some other clause in the policy to support the position of the plaintiff in error. It is supposed this is found in the tenth by-law. But this by-law applies only to a more hazardous business pursued by the assured in the building, whereby the risk is increased. If a means of lighting the building in which the business of the assured is carried on can be deemed the business itself, then the rule covers the case, and the policy was avoided. But this cannot be held to be the meaning of the parties in insisting upon this rule as part of their contract. If asked what business he carried on, .for the purpose of determining the hazard, and thereby the premium, the assured would have answered, shoemaking by machinery. If asked what light he used, he would then have answered, gas from petroleum, or as the case might be. The very fact that a different clause is introduced into the policy to provide against lighting by petroleum or its products, evidences that the tenth rule was not supposed to cover the case. Expressio unius est exclusio alterius. There is, therefore, no clause which by contract avoids the policy, if the prohibited thing be introduced, so that the cáse fell back upon the questions submitted by the court to the jury, whose finding shows that no loss resulted from anything forbidden in the policy. We discover no error in the record. Judgment affirmed.