Kircher v. Milwaukee Mechanics' Mutual Insurance

Cassoday, J. The mere fact that the plaintiff was allowed to testify to the value of the building was not such an error as should work a reversal. True, it was immaterial upon any of the issues submitted, but it affected no substantial right of the defendant, and hence is not ground for reversal. Sec. 2829, R. S. The same is true respecting the answer of the witness Dick as to his seeing Noah Welch and others outside of the house on Friday before the fire, with hatchets and axes, and saying that they were going — 472 — into the woods to out poles. So far as the statement tended to prove anything it was favorable to the defense, since it might be inferred therefrom that Welch intended to continue the use of a portion of the building in shaving hoops. The question whether such use of the second story of the building materially increased the hazard and risk was one of fact for the jury. It was fairly submitted to them. There appears to be evidence sufficient to sustain their findings. We are unwilling to hold that the jury were concluded upon that point by the testimony of “ men skilled in the business of insurance.” In fact the question presented involved no such special skill or knowledge as to render the “ opinion ” of such alleged experts admissible. Veerhusen v. C. & N. W. R. Co. 53 Wis. 689; Joyce v. Maine Ins. Co. 45 Me. 168, 71 Am. Dec. 536; Lawson, Exp. Ev. 203. There was no error in allowing counsel to comment upon the fact that two persons who, according to one of the defendant’s witnesses, went into the room with him where the hoop-poles were being shaved, had not been called as witnesses. Baker v. State, 69 Wis. 41. The only question presented by the record requiring serious consideration is whether the use of the second story of the building in shaving hoops by the plaintiff’s tenants, as found by the jury, was such as to work a forfeiture of the policy. Such use continued for one week, and terminated three days before the fire. Such use did not materially increase the hazard and risk, and in no way contributed to the injury. In the portion of the policy quoted in the statement of facts it was, in effect, agreed that if the premises should at any time be occupied or used, in whole or in part, for any purpose, whether manufacturing or otherwise, different from that set forth in the application or written in the policy, without the consent of the company indorsed thereon, the same should wholly avoid the policy. In the contract of insurance, the building is, in effect, described — 473 — as “ a dwelling-house, to be occupied by tenants for three 37ears;” and it appears that at the time of making the contract it was in fact occupied by three different families as tenants. Beyond question the clause of the policy referred to was a continuing warranty that such occupation or use of the building as a dwelling-house, in whole or in part, should not be “ for any purpose, whether manufacturing or otherwise, different from that set forth ” in such contract of insurance. Blumer v. Phœnix Ins. Co. 45 Wis. 622; S. C. 48 Wis. 535, 33 Am. Rep. 830; Wakefield v. Orient Ins. Co. 50 Wis. 532; Copp v. German Am. Ins. Co. 51 Wis. 637; Fitzgerald v. Connecticut F. Ins. Co. 64 Wis. 463; Bonneville v. Western Ass. Co. 68 Wis. 298; Hankins v. Rockford Ins. Co. 70 Wis. 1. This being so, a substantial breach of such Avarranty would avoid the policy, even where the transaction constituting such breach in no way contributes to such loss. But to prevent such forfeiture the court is bound to construe such contract “ as strongly against the 'insurer, and as favorably for the insured, as its terms will reasonably permit.” Ibid.; Wakefield v. Orient Ins. Co. 50 Wis. 532. Hence the rule is pretty well settled that in order to work such forfeiture a substantial breach must be established. Troy F. Ins. Co. v. Carpenter, 4 Wis. 29; Wakefield v. Orient Ins. Co. supra; Copp v. German Am. Ins. Co. 51 Wis. 637; Billings v. Tolland Co. M. F. Ins. Co. 20 Conn. 139; Loud v. Citizens’ Mut. Ins. Co. 2 Gray, 221; Hall v. Peoples Mut. F. Ins. Co. 6 Gray, 185; Farmers' & M. Ins. Co. v. Simmons, 30 Pa. St. 299; Martin v. State Ins. Co. 44 N. J. Law, 485; Williams v. New England M. F. Ins. Co. 31 Me. 219; Westchester F. Ins. Co. v. Foster, 90 Ill. 121. The question recurs whether the misuse here complained of constituted such substantial breach. It will be observed that the building at no time ceased to be occupied by the three tenants named, nor at any time ceased to be used by — 474 — them respectively as a dwelling-house. It would be difficult to prescribe any fixed limitations to the ordinary use, alike applicable to all sorts of dwelling-houses wheresoever located and by whomsoever occupied. In some portions of the same city the ordinary use would be very much different than in other portions; and even in the same portion of a city the ordinary use by some persons may be very different than by other persons. The difference is perhaps still greater in distant portions of the country, depending upon the business and character of the occupant, and whether he is located in a well-established community or on the border, or in a lumbering, mining, or farming district. In contracting for insurance upon a dwelling-house such diversity in the ordinary use must be regarded as in the contemplation of the parties. In view of the authorities cited, and man}^ others which might be cited, we must hold that the incidental use by the tenants of the second story of the building in shaving hoops for the period mentioned was not a substantial breach of the conditions of the policy; especially where, as here, such use in no way contributed to the loss and did not materially increase the hazard and risk. We find no material error in the record. By the Court.— The judgment of the circuit Court is affirmed.