Farmers' Mutual Fire Insurance v. Schaeffer

Bryan, J., delivered the opinion of the Court. This is the second appeal in this case. The opinion delivered when the first appeal was decided will be found in 80 Maryland, 563. The appellant brought an action to recover the loss which he had sustained by the destruction by fire of a bark mill and shed which belonged to him. It was not controverted that the appellee’s property had been insured by the appellant (the defendant below), and it was admitted that he had sustained a loss by fire to the amount of fifteen hundred dollars. The liability of the insurance company depended, on the effect upon the rights of the parties which resulted from the presence of a portable steam engine on the premises of the insured. The evidence showed that on the day of the fire this engine occupied a position between fifty and sixty feet from the bark mill of the plaintiff which was burned, and that it was used for the purpose of grinding bark; and that the plaintiff for about eighteen months before the fire had been in the habit of hiring such engines, and having them brought to his bark mill and using them for this purpose at intervals of a month or six weeks. The only conditions of insurance referring to steam engines are the sixteenth and the seventeenth. It was de [381] cided on the former appeal that the sixteenth condition had no application to this case. The seventeenth is as follows : “ That in the event of an engine being stationed on the premises and in close proximity to the buildings insured by this company, then, in that event, the president of the company shall appoint a committee of three discreet men, who shall be members of this company, who shall proceed forthwith to said property to make a fair and‘impartial examination in order to ascertain the amount of increased risk on account of said engine, and if they shall find that the risk is increased thereby, then they shall take an additional premium note for such increase, upon which the assured shall pay ten per centum at the time of the execution, and said note to be subject to the same assessments as other notes of said company, to meet losses by fire happening to property insured by this company.” The evidence in the record relating to the engine varies from that presented to us on the former appeal. It was then stated that ten days before the fire occurred the plaintiff gave the general agent of the insurance company notice that he was then using the steam engine on his premises. The evidence in this record is to the effect that the engine was brought there on the twenty-sixth of February, the day before the fire. The plaintiff testified as follows in regard to notice to the general agent: “He had a conversation with Mr. Joseph Shaeffer on the 17th day of February, 1892, the day after Hull’s fire, in which he told him that he did not want any trouble if he met with a loss or accident. Told him on the same day that he used an engine about once a month to grind bark at his bark mill. On the first day Shaeffer said that he did not know, and on the next day he said witness was a manufacturer. Witness told Shaeffer on same day that he wanted a permit and wanted to be made safe, and was willing to do anything to be made safe in case of an accident or loss, and was willing to pay anything and did not want any trouble if he met with a loss.” Supposing this testimony to be found true by the jury, the question is [382] whether the plaintiff’s right of recovery is defeated. It will be seen that stationing “ an engine in close proximity to the buildings insured,” is not made a cause of forfeiture of the policy. It gives the insurance company the right to make a fair and impartial examination for the purpose of ascertaining whether the risk of loss by fire is increased; and the right to require an additional premium note, in case such increase is found to exist. Now, according to this testimony, the plaintiff gave the insurance company a full opportunity to exercise its rights. He informed its general agent that he was in the habit of using an engine, and that he was willing to do anything to be made safe, and to pay anything, and that he did not want any trouble if he met with a loss. There was a proffer to pay what was necessary to protect his rights under the policy; it was nb fault of his that his proffer was not accepted. He might reasonably infer from the remarks of the general agent that “ he did not know,” and that “ he (the plaintiff), was a manufacturer;” that the insurance company did not intend to exact an additional premium. At all events they did not exact one, when they had a full opportunity to do so. To be sure, the engine was not on the plaintiff’s premises at the time of the notice. But the general agent was informed that it was frequently and habitually used there. This conversation took place ten days before the fire. Under the circumstunces, which we have detailed, we think that it would be unjust to the plaintiff to make an objection to the use of the engine for the first time after the loss by fire had occurred; and then to insist upon his failure to give a note for an additional premium as a cause of forfeiture. The plaintiff’s second prayer fairly left to the jury the essential questions in the case. They were required to find whether the plaintiff gave to the general agent of the insurance company the notice above mentioned; and whether after such notice a sufficient time elapsed before the fire to enable the president of the insurance company to ascertain [383] through the appropriate committee the amount of increased risk, if any, caused by the engine; and also to enable the plaintiff to give an additional premium note for the same, if it was found to exist. If these facts were found, the prayer asserted in effect that the policy of insurance was not vacated, even if the risk were increased by the use of the engine, and if the fire were caused, in whole or in part, by such use. We think that the Court properly granted this prayer. The jury found the facts in favor of the plaintiff, and their finding settled the material questions in the case. (Decided January 9th, 1896.) Judgment affirmed.