Steers v. Home Insurance

The opinion of the Court was delivered by Todd, J. This is an action to recover on a policy of lire insurance issued by the defendant company. [954] The policy issued on the 20th of February, 1885, for the sum of $4000, and on the 27th of October following the building insured, known as the “ old Golding Foundry,” was destroyed by fire. The defense is that the property was insured as a vacant building; that it was stipulated as part of the contract that if the premises should be occupied or used, and the use changed so as to increase the risk, without notice to the company and its consent indorsed on the policy in writing, then the policy should be void. It is charged that during the period covered by the policy the property was held by the plaintiff as a warehouse for the storage of cotton, without the consent or knowledge of the company, and as a place for cleaning old iron cotton ties with coal tar, without the consent of the company,.and that such use materially increased the risk and avoided the policy. There was judgment in favor of the plaintiff, and the defendant appealed. The second defense about the cleaning of old iron ties with coal tar seems to have been abandoned, leaving only to be determined the first defense, relating to the use of the building as a warehouse, without the knowledge or consent of the company. There is a clause in the policy that reads (quoting): “ It is understood that when the above building is used as a warehouse the rate will be changed.” Tt is apparent from this clause, and especially from the use of the word “ when ” therein, that it was in contemplation of the parties to the contract that the building would be used at some timo as a warehouse ; and further, that when so used the insurance should continue, but at a different rate. The contention, therefore, that the use of the building as a warehouse avoided the policy, is not sound, since the words of the contract refer to the precise case of its being so used, and provides for the continuance of the policy in that very event. The company was, however, entitled to a notice of the change made in the use or condition of the building. The plaintiff swears positively and emphatically that he did give such notice to the president of the company ; told him “ he was about to store cotton in the building,” and further said to him, to use his language: “I suppose you will charge me a higher rate now 9” To which the president replied (again quoting) : “ 1 do not know whether T will or not; I will see.” It is true that this was denied by Mr. Sefton, the president of the company, who testified in the case. [955] The judge a quo, doubtlessly, acting on the principle or elementary rule of evidence “ that positive testimony on a given point must always predominate over negative testimony on tlie same point,,” gave credence to the statement of Steers rather than to the denial of this statement by Sefton, and mainly by reason of it rendered judgment in favor of the plaintiff. In the case of Story vs. Insurance Company, 37 Ann. 258, this Court, when tlie same question was before it, used the following language: “But one witness swears affirmatively, and the other negatively. The assertion of a fact which never had an existence cannot be consistent with truth; whereas the denial of a fact which has existence may, without violating the truth, be the result of inatteution or a defective memory,” and then announced the rule of law on the subject quoted above. An examination of the record affords some confirmation of a defective memory on the part of this witness, which it is unnecessary to enlarge upon. ' We find no reason whatever to reject the conclusion readied by the district judge upon this issue of fact, nor to question the correctness of the judgment rendered by him. The judgment is therefore affirmed, with costs. Fenner, J. recused on. account of interest.