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Miscellaneous.

XIII. STATUTORY PROVISIONS.

[See also, p. 124.]

1. California. Change of interest. 2 Deer. Annot. Civ. Code Cal., §§ 2,553-2,557. 2.- Other insurance. 2 Deer. Annot. Civ. Code Cal., § 2,641.

3.- Transfer suspends policy until same person owns thing insured and policy. 2 Deer. Annot. Civ. Code Cal., $2,593.

13. Other insurance. Georgia Code, 1882, § 2,812.

14. New Hampshire. A change in the property or in use or occupation affects policy only while the change continues. Pub. Stat. N. H., 1891, p. 485, § 4.

15. If policy assigned absolutely or as collateral with assent of the company, action may be maintained by assignee in his own name for full amount for benefit of whom it may concern. Pub. Stat.

4.- Alteration and increase of risk. 2 Deer. Annot. Civ. Code Cal., §§ 2, 753-2,755. | N. H., 1891, p. 487, § 16.

5. Canada, (Quebec.) Alteration in 16. North Dakota. Change of inuse or condition must increase the risk.terest. Comp. L. Dak., § 4,113-4,118. Transfer of interest and policy. Sharp 17.- Effect of transfer. Comp. L. Dak., Civ. Code, 1888, §§ 2,516, 2,574, 2,577. $ 4,148.

6. Delaware. Value of real property insured must be indorsed upon policy, and if insured effects other insurance in excess, all insurance becomes void. Del., 1889, ch. 695.

L. 7. Georgia. Increase of risk. Georgia Code, 1882, § 2,805.

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18.- Other insurance. Comp. L. Dak., S 4,181.

19.- Alteration and increase of risk. Comp. L. Dak., §§ 4,254-4,256; and see Dak. Code (Levisse), §§ 1,630-1,633.

20. Oklahoma. Change of interest. Stat. Oklahoma, §§ 3,059-3,063.

21. Transfer suspends policy until ownership of thing insured and of the

9.- Transfer to one of several insured. policy united in same person. Stat. OklaGeorgia Code, 1882, § 2,808.

10. Effect of partial sale. Georgia

Code, 1882, § 2,809.

homa, § 3,094.

22.- Alteration increasing risk entitles insurer to rescind; otherwise does not

11.- Transfer after loss. Georgia Code, affect the contract. Stat. Oklahoma, 1882, §2,810.

12.- Transfer by operation of law. Georgia Code, 1882, § 2,811.

S$ 3,156, 3,157.

23. South Dakota. See North Dakota.

SECTION VI.

This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon.

New York Standard Form.

I. MILITARY

OR USURPED POWER,
RIOT, ETC.

3.- The clause excluding liability for loss "by means of invasion, insurrection, II. NEGLECT TO SAVE AND PRESERVE. . . . military or usurped power;" held, III. EXPLOSION.

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to refer to acts by an army of invasion or rebellion, though done without any direct command from officers; the question is whether the loss, whatever the cause of the fire, occurred in consequence of such military or usurped power as a proximate cause. Barton v. Home Ins. Co., 42 Mo. 156.

4.- Policy contained clause excepting loss occasioned by means of invasion of military or usurped power. Property insured was situated in a place held by troops of the U. S. Being attacked by confederate forces during the progress of the battle, the U. S. officer in command directed that a certain building should be fired to prevent its falling into the hands of the enemy, which was done. The fire thus started, after destroying several intermediate buildings, burnt the one insured. Held, that the invasion was the cause of the loss, and that it was excepted by terms of the policy. Ins. Co. v. Boon, 5 Otto, 117 (U. S.); rev'g, 12 Blatch. 24.

5.- Company was exempted from liability in case of any loss by fire which might happen by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power. The insured property, and large amounts of other property, was destroyed by fire

Riot Theft.

started by and under the orders of officers of the United States government. At that time the ordinance of secession had passed the Virginia legislature, but had not been submitted to the people for ratification. Held, that the ordinance of secession being then inoperative, Virginia could not be regarded as a foreign state or country so as to make the act of the United States troops an invasion on the part of the United States, and that hence the loss was not within the exception. Portsmouth Ins. Co. v. Reynolds, 32 Grat. 613 (Va.)

sion. Straus v. Imperial F. Ins. Co., 94 Mo. 182; 13 West. Rep. 116; 6 S. W. Rep. 698.

11. Pleading. Complaint need not aver that the loss did not occur from the excepted risks. Blasingame v. Home Ins. Co., 17 Ins. L. J. 611; 75 Cal. 633.

12. It is unnecessary to negative the excepted causes of liability; these are properly matters of defense. Catlin v. Springfield Ins. Co., 1 Sumn. 434 (U. S. Cir.); Lounsbury v. Protection Ins. Co., 8 Conn. 459.

13. Theft. Where policy provided, "and it is hereby declared that this com

6. Riot. In order to exempt an insur-pany shall not be liable to make good any ance company from liability for loss by riot, it is not necessary that the guilt of the rioters should have been first established by a criminal prosecution. Dupin v. Mutual Ins. Co., 5 La. Ann. 482.

loss by theft; or any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power;" held, that the clause pro7.- Where a house is destroyed by a tecting company against losses by theft, riotous assemblage, and there is a clause was independent of the one immediately in the policy excepting a loss of that char- following; and assured could not recover acter, the insurance company is not liable for losses by theft, although another for the loss; and it is in such case imma-clause in policy required assured "to terial that the rioters originally assembled for a lawful purpose, but afterwards were guilty of riot. Id.

8.- Evidence showed that eight or ten men exchanged shots with the watchman, set fire to the coal breaker, and drove off the watchman. Held, to be a "riot" within meaning of clause in policy exempting company from liability in such case. Lycoming Fire Ins. Co. v. Schwenk, 10 Ins. L. J. 13; 95 Pa. 89.

9.- For a number of masked men in the night time to assemble and forcibly break into a dwelling house and compel the occupant to vacate under threats of personal violence, and then burn down the building, constitutes a "riot," as defined in Ind. Rev. Stat. 1881, § 1,981; and a recovery cannot be had on a policy providing that it shall not cover the loss by fire caused by a riot. *Germania F. Ins. Co. v. Deckard, 28 N. East. Rep. 868; 3 Ind. App. 361.

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use all diligence in removal and preservation of the property, and in case of failure on his part so to do, the company would not be liable for loss or damage sustained in consequence of such neglect;" and such loss by theft was occasioned by assured removing goods, in compliance with such last clause. Webb v. Protection & Etna Ins. Co., 14 Mo. 3; see Witherell v. Maine Ins. Co., 49 Me. 200; Talamon v. Home and Cit. Ins. Co., 16 La. Ann. 426; Fernandez v. Merchants' Ins. Co., 17 La. Ann. 131.

14. And also cases where policy contained no exception of liability on account of theft. Tilton v. Hamilton Fire Ins. Co., 14 How. 363; 1 Bosw. 367 (N. Y.); Independent Ins. Co. v. Agnew, 34 Pa. 96; Newmark v. Lond. & Liv. Ins. Co., 30 Mo. 160.

15.- Where policy provided that, “in case of fire or of loss or damage thereby, it shall be the duty of assured to use their best endeavors for saving and preserving the property," etc.; held, that the value of goods lost or stolen, whilst in process of removal (in accordance with the above requirement of the policy), from a building actually on fire, was a loss within the terms of the policy. Independent Mut. Ins. Co. v. Agnew, 34 Pa. 96.

10. Resistance to lawful authority. A policy providing that it shall be void upon notorious resistance to lawful authority" is not made void where four or five convicts put unarmed guards in practical arrest, and, the moment they came in contact with an officer authorized to 16.- An insurer against fire only is arrest them, yielded immediate submis- liable for goods stolen during a removal

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3. The term gross negligence, as used in a condition exempting from loss on that account, is the want of that diligence which even careless men are accustomed to exercise. Lycoming Ins. Co. v. Barringer, 73 Ill. 230.

to avoid impending loss by an adjoining Aurora Fire Ins. Co. v. Johnson, 46 Ind. fire, and a demand by the local agent for 315. such removal, though outside his authority, is strong evidence of the propriety of the removal. A clause in the policy that the company "will not be liable for damage to goods contained in the show windows, when the damage is caused by the light in the window; nor shall the company be liable for loss by theft," applies only to theft from the show windows, not theft in the necessary removal in trying to avoid a fire. Leiber v. Liverpool, London & Globe Ins. Co., 6 Bush. 639 (Ky.)

4. The fact that the assured, being required by the policy to save the property insured, gave instructions “not to interfere unless all could be saved,” to prevent dispute as to what was consumed, is immaterial, when it appears that it was impossible to have saved anything. Willis v. Germania Ins. Co., 79 N. C. 285.

17.- Condition that company shall not be liable for "loss or damage by theft at or after any fire," is binding on the insured. Liv., L. & G. Ins. Co. v. Creigh-venting others from saving the insured ton, 51 Ga. 95.

17a. Cross references.

Section fourteen. Removal. No. 3.

II. NEGLECT TO SAVE OR
PRESERVE.

Duty of insured.
Question for jury.
Evidence.

1. Duty of insured. The usual

5.- By wilful neglect to save or pre

property, it must be done with the fraudulent intention and purpose of throwing loss on the company. Devlin v. Queen Ins. Co., 46 Up. Can. Q. B. 611.

6. Upon an issue duly tendered and evidence tending to establish it, it is error for a trial court to refuse to instruct the jury that the assured can not recover for any loss or damage occasioned by his neglect, in not making efforts to save and preserve the property from destruction. Ellsworth v. Etna Ins. Co., 11 Ins. L. J. 544; 89 N. Y. 186.

ance policy, in the absence of facts showing that the negligence was willful, wanton or fraudulent. Recompense for one's negligence is one of the objects of fire insurance. Phoenix Ins. Co. v. Sullican,

7.- The negligence of the insured is clause in a policy that upon the hap-no defense to an action on a fire insurpening of a fire the insured shall use all reasonable means for "the protection" of the property does not require them to use means to restore it to its condition before the fire, but only to take the necessary steps to prevent its final de-39 Kan. 449; 18 Pac. Rep. 528. struction or further deterioration, and to put it in a condition to be examined. Thus, where a large part of the goods insured were shirts, bosoms and collars, most of which were injured only by water or by handling; held, that the insured were not bound to have them relaundried. Hoffman v. Etna Fire Ins. Co., 1 Robt. 501; 19 Abb. 325; aff'd, 32 N. Y. 405.

8. Question for jury. Whether assured has used due exertions to save property insured or not is a proper question to be determined by a jury. Dear v. Western Assur. Co., 41 Up. Can. Q. B. 553.

9. Evidence. Where plaintiff was permitted to testify what property other than that covered by the policy was destroyed in his building, if it tended to re2. An answer setting up defense un- but the theory of the defense that the loss der condition in policy requiring assured was by reason of the failure of the insured to use his best endeavors to save prop-to use his best endeavor to save the property and prevent loss, etc., must also erty, it was admissible; otherwise it would aver that it was in his power either to be immaterial error not affecting the judg prevent the fire or loss of property.ment. Phoenix Ins. Co. v. La Pointe, 5

General Rules,

West. Rep. 512; 16 Ins. L. J. 58; 118 Ill. escaped from its confinement and passed 384; affg, 17 Brad. 248.

10. Cross references. Section one.

Subd. VI. Loss or damage. Nos. 3, 4. Section fourteen. Removal. Nos. 5a, 5b.

III. EXPLOSION.

General rules.

When company is liable.
When company not liable.
Destruction of building.
Proximate cause.
Question for jury.

Cross references.

into the still-room, was no longer part of the merchandise insured, and was not under the protection of the policy; 2d, although such explosion, from the nature of the property, was in contemplation in taking the risk, yet the requirement that it be "expressly insured against, and a special premium paid therefor," prevents its being constructively contracted against without such express insurance and special premium. United F. L. & M. Ins. Co. v. Foote, 22 Ohio St. 340.

4.- Policy provided that company should not be liable "for any loss or damage by fire caused by means of an invasion, insurrection, riot, etc., . nor for any loss caused by the explosion of gunpowder, camphene, or any explo

1. General rules. A condition ex-sive substance, or explosion of any kind." cepting liability for damages by explo- Held, that, by construction, the latter sion includes an explosion of engine clause did not except liability for losses covered by the policy, although engine by fire caused by explosion. Commerincidental and essential to the business. cial Ins. Co. v. Robinson, 64 Ill. 265. Hayward v. Liverpool & Lond. & G. Ins. 5. There is no presumption from a Co., 2 Abb. Ct. App. Dec. 349; 3 Keyes, | special premium charged for insuring an 456; affg, 7 Bosw. 385 (N. Y.) oil refinery that it was the intention of

the printed exception the explosion risk; in such case it must be assumed that the parties intended special premium on account of extra hazard. Smiley v. Citi

company

2.- Policy provided that it should the contracting parties to exempt from not be liable for damage occasioned "by the explosion of a steam boiler, nor from damage resulting from such explosion, nor explosions caused by gunpowder, gas, or other explosive substances." Fire re- | zens' Fire Ins. Co., 14 W. Va. 33. sulted from an explosion of gas. Held, 6.- Policy provided that that the exemption from liability for damage occasioned by explosion was limited to the explosion of a steam boiler, and that the company was exempted from liability from the effect of the explosion only of the gas and was liable for the consequent damages by fire. Boatman's Ins. Co. v. Parker, 23 Ohio St. 85; and see Stanley v. Western Ins. Co., L. R. 3 Ex. 71 (Eng.)

should not be liable for loss caused by explosion of gunpowder, etc., or “any other explosive substance," except only such loss from fire that may ensue therefrom; "nor shall the company be liable for any loss by such fire, unless privilege shall have been given in the policy to keep such articles," etc. Held, that this condition had no reference to flour dust, which, while an explosive substance, was 3.—Where the insurer is not to be liable not within the meaning of the term as for any loss occasioned by or resulting used in the policy in reference to "keepfrom any explosion whatever," whether ing." Washburn v. Ins. Cos., 9 Ins. L. J. of certain enumerated articles "or any 761; 2 Fed. Rep. 633. And see Washburn v. explosive substance," unless expressly in- Western Ins. Co., 9 Ins. L. J. 424 (U.S. Cir.) sured against and special premium paid 7.- When policy provides that comtherefor," it was claimed that the insur-pany shall not be liable for a loss caused ance being upon whisky in the process of by an explosion of any kind unless fire rectification, a loss from the whisky ensues, and then for the loss or damage vapor becoming explosive was contem- by fire only, company's liability under plated, and impliedly insured against; the policy is not modified when it is but, held, 1st, that this vapor having shown that the explosion followed the

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