Farmers' Mutual Fire Insurance v. Moyer

Mr. Justice Gordon delivered the opinion of the court, April 1st 1881. On the 5th of April 1869, George K. Moyer, the plaintiff below, [448] obtained a policy of insurance from the defendant company, covering his barn and its contents. The building was insured in the sum of $1500 and its contents in the sum of $1000. On the 20th of November 1875, it and all it contained were destroyed by fire. The fire which produced this destruction seems from the evidence to have originated from the explosion of the boiler of a portable steam-engine, which had that morning, or the evening before, been stationed within some thirty-two feet of the barn, for the temporary purpose of threshing grain on the barn floor, a strap being used to connect the engine with the threshing machinery. The assignments of error, though numerically four, are substantially but two, and are raised by the defendant’s first and eighth points. They are as follows: 1. “ That as under the uncontradicted evidence in this case, no proof of loss was furnished to the company by Moyer till the 7th of December 1875, and as by the terms of the policy, the insurance was not payable till three months after such proof was furnished, and the suit in this case was instituted on February 26th 1876, the verdict of the jury must be for the defendant, the suit having been brought prematurely.” 2. “ That the true construction of the charter, policy and by-laws in evidence, prohibits the insurance of any building or barn which is located within fifty yards of any steam-engine, or within which any cceamengine is used.” As to the first of these points, if indeed the uncontradicted evidence supported it, there would have been an end to the case; the plaintiff could not have recovered. But unfortunately for the defendant, such was not the case. I-n the first place, there was the preliminary notice of the total loss of the barn and its contents — that this was in time was admitted — and in the second place, there was the question of waiver, which the couvt submitted to the jury. .As to the first of these, the learned judge held that the preliminary notice, so far as the barn itself was concerned, the loss being total, was sufficient without the more formal proofs. In this he was undoubtedly correct, if the case of the Lycoming County Mutual Ins. Co. v. Schollenberger, 8 Wright 260, is law, for it is exactly in point. The counsel for the plaintiff in error attempts a distinction, which it seems the court below was unable to comprehend, and we must confess to a similar want of intelligence. He insists that while the policy in the case cited was a valued one, that in the case in hand it is not a valued one. Of course, this distinction, if it exists at all, must be found in some substantial difference of the wording of the two policies. Let us compare them. Schollenberger’s policy covered a coal breaker, including a steam-engine, schute, screens, machinery and trestle-work, in a sum not exceeding $2500, for the term of five years. Moyer’s insurance is, inter alia, upon “'one bank barn of frame, 70 feet by 36 feet, for $1500,” and for the term of ten years. Now as the word “for” in the quota [449] tion means “in a sum not exceeding,” “ to the amount of,” it is impossible for us to discover the difference between the two policies, or that if the one is a valued policy, why the other should not be. As to the contents of the barn, the court held that special notice of loss was necessary, and if it were not given until December, the suit was premature, and as to them it must abate, unless there was some act of the company which was equivalent to a waiver of such notice. On this point the learned judge held that if, at the meeting of the board of directors on the 27th of November, determination was had not to pay Moyer, or to recognise any liability whatever, on the ground that he ought not to have allowed the steam-engine to have been brought upon the premises, and that he thereby forfeited his policy, and not upon ground of want of the proofs of loss, the jury might regard such action of the company as evidence of a waiver of such proofs. This was a correct ruling. Insurers undoubtedly have the power to waive the performance of a condition introduced into a policy for their own benefit, and it is not necessary that such waiver be express; it may be inferred from their acts, and among others of such acts is a denial of the obligation exclusively for some other reason than that of a breach of the condition: Inland Ins. Co. v. Stauffer, 9 Casey 397; State Ins. Co. v. Todd, 2 Norris 272. As to the answer of the court to the defendant’s eighth point, and the charge relative to the subject-matter covered by that point, we think, if in them there is any error, it is one of which the plaintiff had reason to complain rather than the defendant. It was held that the plaintiff could not recover if the use of the engine increased the risk ; in other words, the jury were left at liberty to find a forfeiture) m the ground stated, but neither in the policy, by-laws nor constitution of the company was the temporary use of a portable engine for grain threshing or other economic use prohibited. The 26th article of the by-laws prohibits the insuring of any building “ situated within fifty yards of a railroad on which steam-power is employed, or of any forges, foundries, furnaces, rolling-mills, powder-mills, paper and oil mills, cotton-mills, or, in general, any mills, factories or machineries driven by steam-power.” But the property in the case in hand is embraced by neither the letter nor spirit of this prohibition. Again, art. 84 provides: “ If the owner of an insured building should convert it to some other purpose, or should carry on therein any of the trades specified in art. 26, the policy of such insured building shall not be considered valid or binding upon this company for such length of time as it shall be appropriated to such purpose.” Neither is the plaintiff’s case taken up by this provision; for [450] this contemplates the conversion of the building to a purpose other than that for which it was used at the time of its insurance; an adaptation of it to some one of the occupations or trades mentioned in art. 26. But the plaintiff’s barn was converted to no such purpose; it was insured as a barn, and as a barn it was burned. These, however, seem to be all the regulations pf this company which have even a remote bearing upon this subject. But it is only by a strained inference that either of them can be made to bear on the plaintiff’s case, and it certainly would be out of all character to allow a forfeiture to be worked in favor of the company through the operation of a mere inference. There being, therefore, no express prohibition found in the policy or rules of the company against the use of a machine of this kind in the vicinity of the barn, the question was at most one of increase of risk, and that was properly left to the jury. There is not much doubt but that the immediate occasion of the fire was the explosion of the boiler by which the machine was driven; but this was one of those pure accidents that is not to be ponsidered any more than the accidental breaking of a glass lantern, had that been the occasion of the fire. Accidents will -happen, more frequently, perhaps, with steam-engines than some other machines; nevertheless, they are accidents, and as such are beyond human forecast, and if insurance companies desire to prohibit even the temporary use of steam on or near the premises they insure, they should provide against such use in their policies, but it will not do for them to attempt to make rules and regulations, intended for a very different condition of things cover an emergency not previously contemplated. The judgment is affirmed.