Temporary or Permanent Increase. company applies only to the premises in- as the same should be so appropriated, sured, or to the property under the con- applied or used, should cease and be of trol of the insured, and does not extend no force or effect. Held, that the applito property not under his control or to cation of the property to a prohibited the acts of others. *State Ins. Co. v. Tay-use, within the term, would not affect lor, 19 Ins. L. J. 966; 24 Pac. Rep. 333; the right of the assured to recover in 14 Colo. 499. 74.— A condition in an insurance policy that the premises be kept as a private dwelling is not violated by the keeping of boarders, where both the special and general agents were informed thereof at the time of the application, and the busi- | ness is not shown to have been more extensively done after than before the insurance, and the loss was in no way caused by such business. Id. 75.- It must be shown that the change relied on as a defense to an action on an insurance policy containing a clause avoiding it for increase of risk by change of occupation within the knowledge of the assured was known to the assured. *Waggonick v. Westchester F. Ins. Co., 34 Ill. App. 629. case of a loss, if, at the time of the loss, the property was not being so improperly applied or used, and it did not appear that such antecedent misapplication increased the risk or contributed to the loss. New England Fire & Marine Ins. Co. v. Wetmore, 32 Ill. 221. 79.- Clause that the insurance shall be void if “the risk be increased by any means, or occupied in any way so as to render the risk more hazardous than at the time of insuring." Held, the policy becomes inoperative only while the increased risk is in existence, recommencing afterwards. And under such a clause it is not competent to prove that the risk is increased by the increase of the num|ber of fires; but the real question is, was the risk at the time of loss greater in consequence of the presence of stoves in which fire had been used at periods more or less remote from the time of loss, which were not in the building at the issue of the policy, placed as the stoves were and used in the manner proved. Schmidt v. Peoria M. & F. Ins. Co., 41 Ill. 295. 80.- A fire insurance policy which provides that it shall become void in case the situation or circumstances affecting the risk shall be altered so as to increase the risk, with the knowledge or consent of the assured and without the consent of the insurer, is rendered absolutely void by a temporary increase of risk caused by the manner of using the premises, and which is not a casual, inadvertent, or inevitable thing; and the policy will not revive upon the termination of such in 77. Under the usual provision in a policy of insurance, that the conditions annexed are "to be resorted to in order to explain the rights and obligations of the parties thereto, in all cases not herein otherwise specially provided for," such conditions do not define the rights and obligations of the parties under any contingency provided for in the body of the policy. Hence, where a clause in the body of the policy provides that the insurance shall be suspended during any increase of the risk from specified causes, and the conditions annexed provide that the policy shall become void by any in-crease of risk before destruction of the crease of the risk, an increase of risk, such as is specified in the clause in the body of the policy, does not avoid but merely suspends the policy. Mayor, etc., of N. Y. v. Hamilton Fire Ins. Co., 10 Bosw. 537; aff'd, 39 N. Y. 45. property by fire. Kyte v. Commercial Union Assur. Co., 149 Mass. 116; 3 L. R. A. 508. 81.- A provision avoiding the policy if the risk shall be increased by the occupation of neighboring buildings, or by any 78.- Where a policy of insurance pro- means within the control of the insured, vided, that should the premises insured refers to the permanent occupation of the be applied during the term of the insur-adjoining property. Allemania F. Ins. ance to any of certain prohibited uses, the Co. v. Pittsburgh Exposition Soc., 10 policy then and from thenceforth, so long Cent. Rep. 292; 11 Atl. Rep. 572 (Pa.) As Affected by Acts or Knowledge of Agent-Waiver. 82. As affected by acts or knowledge of agent. Policy provided that if the risk should be increased in any manner, that it should be void. Assured built an oven upon the premises, which was constructed and used with care. The agent knew of the existence of the oven, and had power, under the terms of the policy, to cancel it in case of any increase of risk, which he did not do. Held, that there was no violation of the condition. Naughter v. Ottawa Ins. Co., 43 Up. Can. Q. B. 121. Steers v. Home Ins. Co., 38 La. Ann. 952. See also as to effect of insured's knowledge, Rife v. Lebanon Ins. Co., 115 Pa. 530; 4 Cent. Rep. 688. 86. The act of receiving an additional premium for a variation of the risk after the existence of facts which would authorize a forfeiture, had become known to the insurers, must, in the absence of fraud and concealment, be regarded as a waiver of the forfeiture. North Berwick Co. v. New England Fire & Marine Ins.. Co., 52 Me. 336. or declarations, made with knowledge of the facts, treating the contract as still subsisting, and inducing the assured to believe the condition waived and himself still protected, is a waiver. Viele v. Germania Ins. Co., 26 Iowa, 9. 83.- Condition provided that "any 87.- A condition requiring written conchange material to the risk, and within sent to any change of occupation or other knowledge or control of assured," should change increasing the risk, may be waived void policy unless change notified to com-in pais or by parol; at least, where the pany in writing, etc., in which case com- policy not being under seal is not a spepany might cancel. Premises were in-cialty, nor is a new consideration resured as "occupied as a grocery store and quired therefor. Any circumstances, acts dwelling," and were re-let to one who used them for dealing in furniture, and had a small room rear of shop in which he had a carpenter's bench and tools and did repairing and rough work. The local agent of company was notified of change, and went on premises and saw work being done in shop. He then wrote to home office of company, advising them of the facts. They replied that if policy was sent with explanation, they would consent in writing, adding "Is there wood work done on the premises?" Matter was then allowed to drop. The questions of materiality and notice having beer submitted to the jury, held, that their verdict in favor of plaintiff was conclusive. Peck v. Phoenix Mut. Ins. Co., 45 Up. Can. Q. B. 620. 88.- Company is bound upon notice of increase of risk, to exercise its option of declaring policy void and cancelling it; if not done, company waives forfeiture on that ground. Lattomus v. Farmers' Mut. Ins. Co., 3 Houston, 404 (Del.) 89.- Policy provided that, if during the insurance the risk should be increased by the erection of buildings or by the use or occupation of neighboring premises or otherwise, it should be the duty of the insured to notify the company. The company reserves the right to terminate this 84. Waiver. Where property was in- insurance at any time by giving notice to sured by the original policy to the amount that effect, etc. The defense was that a of $200, and after the policy was forfeited smoke house, increasing the risk, was by the introduction of new elements of erected on the neighboring premises, of risk, the company, with full knowledge which the assured failed to give notice. of the facts, by an indorsement on the Held, that the plaintiff had no knowledge policy added $100 to the risk on the same of, and could not, by the lively exercise property, and in the indorsement stated of proper diligence, ascertain such inthe whole risk as thus increased to be creased risk; the condition fairly con$300. Held, that the forfeiture was strued did not oblige him, at his peril, to thereby waived by the company. Rath- ascertain the facts and notify the combone v. City Fire Ins. Co., 31 Conn. 194. pany of their existence. If the com85. As to effect as waiver of knowl-pany acquired knowledge of the increase edge of risks incident to business. of the risk from any source without exerWheeler v. Traders' Ins. Co., 1 N. Eng. cising its option to cancel the policy, it Rep. 319; 62 N. H. 326, 450; White v. would be liable for the loss. Eclipse Ins. Western Assur. Co., 4 Cent. Rep. 723 (Pa.); | Co. v. Schowed, 2 Cin. Supr. Ct. Rep. 474. Questions for a Jury. 90.- Company cannot avail itself of defense of increase of risk, where, after knowledge of the facts, it permits its policy to stand without undertaking to cancel. Fireman's Fund Ins. Co. v. Sholom, 80 Ill. 558; S. P., Williamsburg City Ins. Co. v. Cary, 83 Ill. 453. jury must find upon it from the evidence before them. Harris v. Protection Ins. Co., Wright, 548 (Ohio). 98.- Where policy provided, “that if the risk should be increased by any means within the control of assured, or premises occupied so as to render the risk 91.- Issue being on question of in- more hazardous than at time of insuring," crease of risk and notice to company the insurance should be void; and it was through its agent as waiver of written proved that, after the insurance, the consent, witness was asked, "What is building had been leased, that a back your best recollection as to what took building had been put up adjoining, and place in regard to notice?" Ans. My another building moved up to the addiimpression is that I stated the facts to tion, and that extensive repairs were gothe agent." Held, that testimony was ing on in the house at the time of the not such as to warrant a jury to set aside fire. Held, that it was not for the court, condition of contract requiring written but for the jury, to determine whether consent. Pottsville Mut. Ins. Co. v. Horan, the risk had been increased. Grant v. 10 Ins. L. J. 771; 11 W. N. C. 198 (Pa.) Howard Ins. Co., 5 Hill, 10 (N. Y.) 92.- Policy requiring consent in writing to an increase of risk, notice to agent does not operate as a waiver of such a condition. Id. 93.- Knowledge by the president, who has exercised the power of making insurance, that the insured was making additions to the insured buildings with a verbal permission to do so, estops the company from defending an action on the policy, on the ground that by reason of such additions there had been an increase of risk. Martin v. Jersey City Ins. Co., 44 N. J. L. 273. 99.- A policy of insurance upon stock of goods, described as being in a certain store occupied by the assured, provided that in case of any alterations in or about the premises materially increasing the risk without notice thereof to the company, the policy should be void; but that no alterations, "not within the control of the assured "should affect the insurance. The goods having been seized on execution, the sheriff proceeded to sell the same at auction, in the same store, and whilst thus selling the fire originated. No notice of such sale had been given to the 94.- Condition as to increase of risk company. Held, that the occupation of can be waived only by indorsement on the the premises for the purpose of selling out policy. Gladding v. Insurance Associa-at auction, was a use within the control tion, 13 Ins. L. J. 893; 66 Cal. 6. of the assured" within the meaning of the re-by-law; but whether such use increased newal, with knowledge of an increase of the risk, was a question to be determined risk, operates as a waiver of the forfeit-by the jury. Rice v. Tower, 1 Gray, 426 ure. Parol testimony is admissible to establish a waiver. Story v. Hope Ins. Co., 15 Ins. L. J. 119; 37 La. Ann. 254. 95. Acceptance of premium on 96. Questions for a jury. Under clause, that "if risk be increased by advice, agency or consent of assured, etc., the policy should be void;” held, that if the jury should find that alterations made by assured had increased the risk, the policy would be void. Curry v. Commonwealth Ins. Co., 10 Pick. 535 (Mass.) 97. Although a night auction is not included in the schedule of hazardous employments, yet if the issue presents the question, whether a night auction is more hazardous than a dry goods store, the (Mass.) 100.- In an action to recover for a loss by fire which originated in an adjoining carpenter shop (belonging to and used by the assured), the location of which was properly given in the application for the insurance, it is not error to permit the jury to decide whether stoves are customary and necessary in a carpenter shop, coupled with instructions that, if not necessary and customary the assured could not recover. Nor is it error in such a case for the court to permit the jury to decide, whether the placing of a steam engine in the shop, by which the stoves were superseded, had increased the hazard Questions for a Jury. over what it would have been from the stoves alone, with the instruction that, if it had done so, and the loss was the result of the change, the plaintiff must fail; but if not, the loss must fall on the company, even though the fire may have originated from the engine. Girard Fire & Marine Ins. Co. v. Stephenson, 37 Pa. 293. 101.- Whether certain acts or omissions increase the risk, is a question for the jury. Le Roy v. Park Fire Ins. Co., 39 N. Y. 56. 102.- Whether premises are so used as to be rendered more hazardous, is a question for the jury and not resting on the opinion of witnesses. Northrup v. Mississippi Valley Ins. Co., 47 Mo. 435, 443. 103.- Policy insured plaintiff's stock of fireworks and merchandise. The classification upon the policy specified fireworks as specially hazardous. Policy provided that whenever any article subject to legal restriction, should be kept in quantity or manner different from that allowed by law, unless the use or keeping was specially provided for in the policy, it should be void. An ordinance of the city of New York prohibited "works of brilliant colored fires" from being stored within the city limits, but with this exception allowed fireworks to be kept in limited quantity for limited time. Plaintiff kept a quantity of "signal lights," classed as "works of brilliant colored fires," and evidence tended to show that the fire originated among them. Held, error to direct verdict for plaintiff; that if defendant was not entitled to a nonsuit, it was entitled to have the question of increase of risk submitted to jury. Jones v. Firemen's Fund Ins. Co., 51 N. Y. 318. tion in them, jury is to say whether upon the whole the risk is increased. If there are two or more changes unconnected with each other, and one has increased the risk, it is no answer to the plea of forfeiture to say that something else has diminished it. Within this rule it is proper for jury to inquire whether stopping a mill is upon the whole, considering the decrease of risk from accidental fires and the increase from discharge of watchman and want of power for a force pump, such a change in the use and occupation of the premises as to increase the risk. Albion Lead Works v. Williamsburg City Ins. Co., 9 Ins. L. J. 435; 2 Fed. Rep. 479. 107. If there is no express prohibition against use of a threshing machine in close proximity to a barn insured, although fire is caused by its explosion, the question is, at most, one of increase of risk, and that is properly left to the jury. Farmers' Mutual Fire Ins. Co. v. Moyer, 10 Ins. L. J. 514; 97 Pa. 441. 108.- When there is a dispute between the agent who filled in the application and made the diagram and the assured, as to whether the latter actually stated the distance of an exposure as represented by the agent in the diagram, question of misrepresentation as affecting or increasing the risk should be submitted to the jury. Pottsville Mutual Ins. Co. v. Meckes, 10 Ins. L. J. 717 (Pa.) 109.- The test of materiality as to additional occupancy is whether the fact of such occupancy increased the risk, and whether the disclosure of that fact would have influenced the premium. It is a question of fact to be left to the jury. Hardman v. Firemen's Ins. Co., 20 Fed. Rep. 594. 110. Whether risk is increased by substitution of a “fire drier" for a steam 104. Whether there is a change or in- | crease of risk consequent upon removal of a building 150 feet from the spot which it occupied when it was insured is a question | drier, in a hominy mill, is a question of of fact to be determined by the jury. Griswold v. American Central Ins. Co., 70 Mo. 654. 105.— “Increase of risk" is a question of fact and must be submitted to jury. Williams v. People's Fire Ins. Co., 57 N. Y. 274; Gamwell v. Merchants' Ins. Co., 12 Cush. 167 (Mass.); Lattomus v. Farmers' Ins. Co., 3 Houston, 404 (Del.) fact for the jury. German American Ins. Co. v. Steiger, 13 Ins. L. J. 546; 109 Ill. 254; N. B. and M. Ins. Co. v. Steiger, 124 Ill. 81; 17 Ins. L. J. 533. 111.- Whether a temporary use of a steam thresher increased the risk is a proper question for the jury. Long v. Beeber, Rec'r Lycoming Ins. Co., 14 Ins. L. J. 622; 106 Pa. 466. 106. If there is a single change, such 112.- Whether a change in the maas a new use of the buildings or an altera-chinery of a factory increases risk is a Evidence and Procedure in Court. question for the jury. Manheim Mut. F. Ins. Co. v. Thompson, 1 Cent. Rep. 332 (Pa.) 112a. Whether the execution of a mortgage after issue of the policy is an increase of the hazard is a question for the jury. Crittenden v. Springfield Fire and M. Ins. Co., 21 Ins. L. J. 726; 52 N. W. Rep. 548 (Iowa). 113. Evidence and procedure in court. The opinions of experienced underwriters as to whether the erection of a boiler house adjacent to a building insured would increase the risk, are not competent testimony. It is not a matter of science or skill; and the jury must judge for themselves, from the circumstances in evidence, whether the risk was increased. Jefferson Ins. Co. v. Cotheal, 7 Wend. 72 (N. Y.) 114. It is not error to ask witness, who was an experienced and practical fireman, whether, in his opinion, the risk from fire was increased by certain alterations in a building; for such purpose he is an expert. Schenck v. Mercer County Mut. Ins. Co., 4 Zabr. 447 (N. J.) the whole as described in the policy. Appleby v. Firemen's Fund Ins. Co., 45 Barb. 454 (N. Y.) 118.- An insurance agent, unless it appears that he has special knowledge in the course of his business, cannot be called as an expert to give his opinion as to what would or would not be an increase of risk. Schmidt v. Peoria M. and F. Ins. Co., 41 Ill. 295. 119.- Whether taking out and putting in fixtures, putting in new floors and stairs, having a stove, &c., increases the risk or not, is within the common knowledge of men, involves no peculiar information, and the opinion of experts thereto is not admissible. Lyman v. State Mut. Ins. Co., 14 Allen, 329 (Mass.) 120.- Clause requiring consent to change of occupancy increasing the risk, or any increase of risk. Witnesses cannot be allowed to testify that leaving a house unoccupied increases the risk. Testimony that the defendant charged higher premium for unoccupied houses not shown to have been known to plaintiff is not admissible. But the test of increase of risk, that the underwriters generally charge more for unoccupied houses, is competent evidence, and being a matter within the peculiar knowledge of those versed in insurance business experts can testify thereto. Luce v. Dorchester Mut. F. Ins. Co., 105 Mass. 297. 115.- Underwriters will not be permitted to express their opinions as to the nature of a risk, whether it is more or less hazardous; like other witnesses, they can only testify to facts. They do not come within the rule, that experts may testify in particular cases, and that permits men of professional science to give their opin- 121.- An expert is inadmissible to ion upon subjects connected with the testify whether an unoccupied building is arts. Merchants' & Man. Mut. Ins. Co. a more hazardous risk than is an occuv. Washington Mut. Ins. Co., 1 Handy,pied one. 408 (Ohio). Me. 582. Cannell v. Phoenix Ins. Co., 59 122.— One who has charge of the business carried on in a manufactory, with special opportunity to know, and has actual knowledge of the details and processes of the manufacturing and liability to fire, may give his opinion as to whether the risk is or is not increased by reason of a change in business. Brink v. Merchants' Ins. Co., 49 Vt. 442. 116. A witness familiar with the mode of using benzole in patent leather factories in a particular place, may be permitted to testify as to such use; as pertinent to the question whether the plaintiff's use of that article in his own factory had been according to the customary mode in such factories. Citizen's Ins. Co. v. McLaughlin, 53 Pa. 485. 117.- Where an insurance is made 123.- While, in a case involving a upon goods in a specified building, gener-question of increase of risk, the testimony ally, so as to cover goods in any part of of insurance experts may be properly reit, the insured cannot escape the conse-ceived, it is not conclusive, even where quences of allowing a hazardous business uncontradicted, when a state of facts is to be carried on in any part of the build- presented upon which the jury after reing by tenants by showing that he only ceiving all the light which can be obtained occupied a part of the building, and not from it, are still called upon to decide |