Martin v. Mutual Fire Insurance

delivered the opinion of the Court.

This case was submitted to the Court below upon an agreed statement of facts, upon which it was agreed the Court should enter a pro forma judgment in favor of the defendant, and from this judgment the plaintiff has appealed.

The suit is-upon a policy of insurance dated and issued the 24th of December, 1859, by which the defendant insured the plaintiff against “all loss or damage by fire” to the property therein described, for the term of seven years. Among the property so described and insured and for the respective amounts stated, are “five hundred dollars on barn and sheds, (tenant) and seventy-five dollars on corn-house, (tenant.)” By renewals this policy was in force on the 18th of July, 18T4, when the above buildings *57were destroyed by fire. At the time it was issued, as well as at the time of the several renewals thereof, the defendant knew these buildings were in the possession and occupancy of a tenant, the defendant having insured the same at the usual rate for farm buildings and barns in the occupancy of tenants, which is seven per cent., whereas if the owner himself had occupied them, the rate would have been six per cent. The only conditions of insurance that need be stated are :

1st. That “the company shall not be liable to pay for any loss or damage by fire happening in consequence of an invasion, civil commotion, riot, or any military or usurped power whatever, or from any locomotive engine or engines.”

2nd. “In case of any material increase of risk to the property insured, such increase of risk must be notified to the company, and written permission therefor obtained. All material alterations and additions to buildings, a change of ownership, change of business or occupant, or the act of renting or vacating the property occupied by the owner when insured, shall vitiate any policy issued on the same, unless such alteration or change shall be first notified to the Board of Directors in writing. Ashes shall not be kept nearer than twenty-five yards to insured buildings, unless in brick or stone ash houses.”

In the agreement of facts it is étated that “on the 18th of July, 1874, the said barn and sbeds and corn house were destroyed by fire which was communicated to said buildings, by sparks from a steam threshing machine used on the premises by a tenant for the purpose of threshing out the crop of wheat.” And it is contended on the part of the company that the use of steam in threshing was not introduced into this State until long after this policy was issued, and the risk arising from so dangerous a method of getting out grain was not contemplated by either party when this insurance was effected, and is not *58therefore a risk covered by tbe policy; that the use of a steam thresher was a material increase of risk, < which avoids the policy under the conditions of insurance, and independently of the stipulations of the policy, if there is any such change in the circumstances of the property by reason of alterations or change of use, as to increase the risk, and a fire is occasioned by the circumstances creating the increased risk, the insurer is not liable. But whatever weight this argument might have if addressed to a case affording scope for its application, it cannot be applied to the case before us. The agreement of facts contains no statement that the assured himself used this engine either in or near to the insured buildings, or ever authorized or assented to such use of it. Nor does the statement go so far as to say that even the tenant introduced the engine into the barn or corn house, or under the sheds, and used it there for the purpose of threshing his wheat. As we read this statement it means that the tenant placed the boiler and engine which drove the thresher, not in the barn or under the sheds, but outside of them and on the premises of which he was tenant, near to the buildings, and used it there in the place, and in the way in which threshing is done by such machines. It may-have been an act of carelessness on his part, in thus making and keeping up a fire in this boiler sufficient to create steam enough to run the machine, too near to buildings easily set on fire, by sparks, but it is negligence in nó degree different from that he would have been guilty of, if he had carelessly set on fire a brush heap in the same dangerous proximity to the buildings. It is by fires occasioned by carelessness of the same description, that such farm buildings in the country are usually destroyed, and the main purpose of the owner in. insuring them, is to protect himself against the consequences of such carelessness on the part of his servants, agents and tenants. If their policies do not cover such risks, there is little use in insuring these buildings, and the owners might as well stand their own insurers of them, *59and save the expense of insurance premiums. It is conceded, the exception as to “ locomotive engines,” does not include a stationary engine liké this. Such being the case as now presented by the statement of facts, according to our understanding of it, there is not only no condition of the policy, but no principle of insurance law, nor any decision we have been referred to or have found, that goes to the extent of relieving this company from liability to the insured owner of the buildings for the loss thus occasioned. In deciding the case upon these facts, we do not wish to he understood as intimating that a different result would follow, if the statement of facts showed that the tenant had actually introduced this steam engine into the insured buildings, and there used it. On that question we express no opinion.

It also appears that in July, 1872, the Board of Directors of this company passed a resolution “ that the use of' steam in threshing by any person or persons insured in this company, within two hundred yards of the insured property, shall suspend the policy of said person or persons from the time of kindling the fire until twelve hours after extinguishing it, unless it shall be clearly and satisfactorily proved that the loss by fire did not originate from such use of the steam engine.” But this resolution was never communicated to the plaintiff, and he had no notice or knowledge of it. His policy had been issued long prior to this period, and his rights under it could not be affected by the resolution. He is not bound by any resolution affecting his contract with, or relation to the company, passed without his knowledge and consent. The company could not render null and void this policy of insurance by quietly jiassing a resolution of this character.

It follows from what we have said the pro forma judgment must be reversed, and a new trial awarded.

Judgment reversed, and new trial awarded.