Lounsbury v. Protection Insurance Co.

Daggett, J. 1. It is contended, by the counsel for the defendants, that the declaration is insufficient. It states, generally, that the defendants, being an incorporated company, for a certain premium, by their policy, made insurance on the buildings, &c. of the plaintiff, viz. a building occupied by the plaintiff as a manufactory of hat bodies, and on the privilege for all the process of said business. There were many conditions annexed to the policy, which the declaration recites, with an unnecessary particularity, and then alleges a loss by fire, and that the plaintiff made proof of loss according to the requirements of the policy. One of those conditions, as they are called, is, that the insurers “will not be liable for any loss or damage, which may happen or take place, by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power.” Another is, that if the building shall, be used, during the year for which it is insured, for any occupation deemed in the policy hazardous, or extra-hazardous, such as soap-boiler’s or tallow-chandler’s business, &c. unless otherwise in the policy specially provided for, then so long as it may be thus occupied, the policy shall cease and have no effect. Now, it is said, that the declaration is insufficient, because these exceptions are not negatived. I ieel no difficulty on this point. All these conditions, if such they may be called, are inserted in the policy by way of proviso, and not at all as conditions precedent. They are introduced for the benefit of the defendants; and they must be taken advantage of, if at all, by pleading. This general rule of law cannot be controverted. Com. Dig. tit. Pleader. C. 81. Hotham v. The East India Company, 1 Term Rep. 638. 645, 6. 1 Chitt. Plead 228, 9. There is another condition, also, which, upon the same principle, ought to have been noticed in the declaration, and the exception negatived. It is expressly provided, that if there appear [467] any fraud or false swearing, the insured shall forfeit all claim under the policy. It is believed, that an averment, that the plaintiff had practised no fraud nor swore falsely, would sound rather oddly in the ears of a good special pleader. 2. The other exception to the declaration is, that there is no averment, that the justice of the peace, Benjamin Isaacs, Esq., before whom the plaintiff made oath to the amount of the loss of property, was not concerned in the loss, nor related to the party; and therefore, for aught that appears, he was incompetent to take this affidavit. In reply to this objection, it may be observed, as was said to a precisely similar objection in Booth v. Booth, 7 Conn. Rep. 366. “Who ever supposed before, that such an allegation was necessary? It is never necessary, in pleading, to negative the exception, which may exist against a judge or justice.” The declaration, then, is good, even upon demurrer; and therefore, it becomes unnecessary to consider another ground taken by the plaintiff, to wit, that if it were defective, it is cured by verdict. 3. There is an exception on the motion for a new trial, that the declaration on oath of the loss of property, did not comport with the allegation in the declaration, nor with the 10th condition annexed to the policy; and therefore, was inadmissible. By this 10th condition, in case of loss, the insured is bound to declare on oath, “whether any, and what other insurance has been made on the same property.” The certificate of the declaration of the loss, made by the plaintiff, so far as regards this point, is in these words: “That said property, or any part thereof, was not, nor has been insured, since the policy of insurance was taken out from the Protection Insurance Company.” The allegation in the declaration is, that this declaration was: “That no other insurance had been made on the property destroyed as aforesaid.” The objection is, that by the declaration, a prior insurance might have been made. Now, I read so as to exclude that idea, without doing any violence to the language. It is as plain as though it had been expressly said, the property was not insured, when this policy was made, nor has it been since, except by this policy. The objection is indeed hypercritical. 4.The charge, it is said, was incorrect, because by the terms of the policy, taken in connexion with the conditions, no carpenter's shop could be kept in the building insured, for any purpose. The insurance was on the building for the manufacture of [468] hat bodies and on the privilege for all the process of said business. These words are very comprehensive. They must include a licence or authority to do whatever was necessary to the manufucture of hat bodies. All necessary machinery might, of course, be made there. It might, also, be there repaired. It would be a very narrow construction, that when a cog in a wheel was needed, or when any part of the machinery required repairing, it could not be done within this building, but the plaintiff must be delayed by going elsewhere. “Carpenters in their own shops, or in buildings erecting or repairing,” are not protected, but excluded. This work seems to me fairly within the privilege "for all the process of manufacturing hot bodies," as expressed in the policy. It is further urged, that it having been admitted, that this building was occupied, during the existence of the risk, for a carpenter’s shop, within the prohibition in the policy, the policy was vacated, and could not be revived, but by some new act of the parties. This objection is refuted, by an express provision in the contract of insurance; and assuredly, the parties must be left to contract for themselves. It is the duty of the court to expound and enforce, not to make, contracts. If the building shall be appropriated to any prohibited use, thenceforth and so long as the same shall be so appropriated, the policy shall cease to bind the insurers. It is difficult to find language more suited to repel this objection. Lastly, it is contended, by the defendants, that if the jury found the use of the building as a carpenter's shop, had ceased, yet if the boards and other lumber remained there, then the risk of fire was encreased, and the court should have instructed the jury, that the palintiff could not recover. In this part of the case, it is material to observe, that no lumber, nor any other article supposed to have been in the building, when the carpenter's work had been carried on, was deemed either hazardous or extra-hazardous, or at all prohibited. There can, therefore, be no objection, on the ground of any such articles being in any part of the building. The declaration, then, is sufficient; and the motion for a new trial must be denied. Hosmer, Ch, J. was of the same opinion. Peters, J. having been absent, during the argument of the [469] case; Williams, J. being interested as a stockholder in the Protection Insurance Company; and Bissell, J., having been of counsel in the cause,—gave no opinion. Motion in arrest to be overruled. New trial not to be granted.