Niagara Fire Insurance v. DeGraff

Campbell J.: Plaintiffs in error insured DeGraff upon his stock of goods, described in his application as a “stock of dry goods, groceries, &c.,’’- dividing the risk into specific sums on dry goods, groceries, hardware and other things specifically mentioned. There was evidence tending to show that he had in his store a few bottles of spirituous liquors, and a barrel of alcohol. Alcohol was among the articles mentioned in the second class of hazards in the second sub-division of extra hazards. Grocers’ stocks generally were in the first sub - division of the same class. Bottled spirituous liquors were not classed as extra hazardous, but were included in the first class of ordinary hazards in the second division of hazardous. There was evidence tending to show that the insurance agent who drew up the application was informed of the presence of the liquors and alcohol, which was however denied by the agent. The property being destroyed, a suit was brought on the policy, [135] and judgment was recovered. Error is brought on the rulings upon the trial. The points taken refer mostly to a clause in the policy which .declared that if the store should, be used “for storing or keeping therein any articles, goods or merchandize, denominated hazardous, or extra hazardous, or specially hazardous, in the second class of the classes of hazards annexed to this policy, except as herein specially provided for, or hereafter agreed to by this corporation, in writing upon this policy, from thenceforth, so long as the same shall be so used, this policy shall be of no force or effect.” There was a further clause annuling the policy whenever gunpowder or any other article subject to legal restriction should be kept in greater quantities or in a different manner than prescribed by law. The Court below refused to charge, as requested, that since the passage of the Prohibitory Liquor Law, alcohol and spirituous liquors are not included in the term “ groceries ’’ as used in referring to goods kept for sale; and charged that the question whether they were so included was one of fact for the jury. To this exception is taken. It was claimed on behalf of the plaintiffs in error, that if these liquors can be allowed to be included in a policy, the policy will be to all intents and jrarposes insuring an illegal traffic; and several cases were cited involving marine policies on unlawful voyages, and lottery insurances, which have been held void on that ground. These cases are not at all parallel, because they rest upon the fact, that in each instance, it is made a necessary condition of the policy that the illegal act shall be done. The ship being insured for a certain voyage, that voyage is the only one upon which the insurance would apply, and the underwriter becomes thus directly a party to an illegal act. So insuring a lottery ticket requires the lottery to be drawn in order to attach the insurance to the risk. If this policy were in express terms a policy insuring the party selling liquors against loss by fine or forfeiture, it would be quite [136] analogous. But this insurance attaches only to property, and the risks insured against are not the consequences of illegal acts, but of accident. Our statute does not in any way destroy or affect the right of property in spirituous liquors, or prevent title being transmitted, but renders sales unprofitable by preventing the vendor from availing himself of the ordinary advantages of a sale, and also affixes certain penalties: — Hibbard v. People, 4 Mich. 125; Bagg v. Jerome, 7 Mich. 145. If the owner sees fit to retain his property without selling it, or to transmit it into another State or country, he can do so. By insuring his property the insurance company have no concern with the use he may make of it, and as it is susceptible of lawful uses, no one can be held to contract concerning it in an illegal manner unless the contract itself is for a directly illegal purpose. Collateral contracts, in which no illegal design enters, are not affected by an illegal transaction with 'which they may be remotely connected. In the case of The Ocean Insurance Co. v. Polleys, 13 Pet. 157, an insurance upon a ship known by the insurance conqpany to be liable to forfeiture under the registry laws of the United States,, was held valid, and a recovery was permitted for a loss while sailing under papers known to be illegal. The case of Armstrong v. Toler, 11 Wheat. 258, is still stronger. It is difficult to preceive how public policy can be violated by an insurance of any kind of property recognized by law to exist. The question then arises, whether the Court rightly left' it to the jury to say, as a matter of fact, whether the term “groceries” included spirituous liquors and alcohol. That it may include them in the absence of such a statute is not denied; the recognized definitions embracing them clearly,-so that it may be doubted whether it might not, in that case, require evidence of usage to exclude that meaning if such articles existed in an insured stock of groceries. See New York Equitable Insurance Co. v. Lang [137] don, 6 Wend. 623. There was evidence before the jury in the case before ns, that these things did in fact form a part of the stock, and evidence tending to show a knowledge of that fact by the agent. The statute does not prohibit the sale of all kinds of liquors, but, as to some,, expressly recognizes the right in every one. Whatever may be the presumption, under our present statute, as to the extent of the term “ groceries ” — a question not raised in the case, and upon which, therefore, it would be improper to pass — we think the instruction asked was altogether too broad, in claiming that alcohol and other liquors could not possibly be included. The question was properly left to the jury. If the jury found — as their verdict shows they must have done — that the term “groceries” included the liquors in question, then the other instructions complained of, which held that by insuring such a stock the liquors were embraced although extra hazardous, were clearly correct.. By the use of a term including them they are “ specially provided, for in writing on the policy.” Insuring a class of goods includes what is usually contained in it, whether extra hazardous or not. See Bryant v. Poughkeepsie Mutual Insurance Co. 17 N. Y. 200; Harper v. Albany Mutual Insurance Co. 17 N. Y. 194; Harper v. N. Y. City Insurance Co. 22 N. Y. 441; Delonguemare v. The Tradesmen's Insurance Co. 2 Hall, 589. In these instructions the jury were directed to include the articles only if satisfied that they were commonly kept and sold as part of a grocer’s stock. This qualification was sufficiently broad to prevent any improper inferences. The clause of the policy vitiating it if gunpowder and other articles subject to legal restriction should be kept in greater quantities or in a different manner than is provided by law, was not pressed very strongly on the argument, and evidently refers only to articles of an intrinsically dangerous nature, as liable to cause injury accidentally or by [138] carelessness. It has no reference to any risks except such as render the property more likely to be destroyed. There are no statutory provisions concerning liquors analogous to the laws restricting the use of powder. Our attention has been called to the fact, that the other charges given on the one side and refused on the other, are inconsistent with those complained of. So far as this is the cas.e, however, they favored the plaintiffs in error, — those excepted to being the only ones which could damnify them. Had the verdict been for them, the discrepancies would have been more important in determining the rights of the other party. The question whether the jury did not find against evidence, or perversely, conld only be presented in the Circuit Court. The judgment should be affirmed, with costs. Manning J. concurred. Christiancy J. also concurred in the result. Martin Ch. J. was absent.