Other Special Cases-Buildings.

of pickling for market, including drying, | Held, that the requirement of the policy and while packed in crates awaiting ship-as to water was complied with. New York ment, where it was so intended when issued. * Hall v. Concordia Fire Ins. Co., 51 N. W. Rep. 524 (Mich.)

Belting & Packing Co. v. Washington
Fire Ins. Co., 10 Bosw. 428 (N. Y.)

247.- Clause that insurers will not be 242a.- A policy of insurance issued on liable for loss “from fires in buildings una "wholesale stock of drugs, paints, oils, provided with a good and substantial dyestuffs, and other goods not more stove or brick chimney," does not require hazardous, while contained in the three- the stove to be built into and form part of story building," etc., covers the whole such chimney. Madsden v. Phonix Fire stock of the assured contained in such | Ins. Co., 1 S. C. 24. building. Wilson Drug Co. v. Phanix Assur. Co., 14 S. E. Rep. 790; 110 N. C. 350. 243. Other special cases-buildings. Building, insured as a “dwelling house,” may be afterwards occupied as a "boarding house" if “boarding houses" are not enumerated in classes of hazards, or otherwise prohibited. Rafferty v. New Brunswick Fire Ins. Co., 3 Harrison 480 (N. J.) 244.- A barroom in a boarding house is no violation of provision prohibiting tavern keeping. Id.

66

spinning it" is not "rope making," and, not being prohibited in classes of hazards, was allowable. Wall v. Howard Ins. Co., 14 Barb. 383 (N. Y). But see Wall v. East River Ins. Co., 7 N. Y. 370.

248.- Where policy insured parties against loss or damage by fire on their "stock as rope manufacturers," contained in a brick building; held, that it sanctioned the insured in using their stock as rope manufacturers in that building; and one of those uses would be the manufacture of ropes; and that it would permit there the business of a "rope maker," although that was enumerated among the specially hazardous classes of business in the policy. But even if the writ245.- A policy of insurance on the ma-ten words did not permit the business of chinery in a silk factory, which provides a "rope maker," the "hackling hemp and that it shall be of no effect while the premises shall be used for storing "cotton in bales," rags," or "wool," or for a "cotton mill," "woolen mill," or other "manufacturing establishment or trade requiring the use of heat," is not avoided 249. The terms "machine and repair by using one room for weaving a few shop" do not necessarily mean that no pieces of stuff from woolen and linen work is to be carried on in such an esthread and cotton, spun elsewhere and tablishment except in iron; it being kept in the room. Vogel v. People's shown in evidence that assured also Mutual Fire Ins. Co., 9 Gray 23 (Mass.) carried on the business of making 246.- A policy of insurance upon a shingles. Held, that it was proper to two-story factory, with attic and base- be left to the jury to determine whether ment, contained a provision that there the business carried on was that of a mashould be "water on each floor, with chine and repair shop, it being manifest hose." It appeared that the factory was from the tariff of rates that if the term, provided with a steam pump in an ad- machine shop, had alone been used, such joining building and a force pump in the term might have allowed the insured to basement, connected with a water pipe do wood work on the premises. Chaplin passing through the two stories above to a v. Provincial Ins. Co. 23 Up. Can. C. P. 278. tank in the attic, which was so con- 250.- Policy insured on risk of hay structed that its overflow would flood the in haggard at rear, £400. On smaller risk attic floor, that hose was kept upon the of hay in said haggard, £200." Held, to premises, attached to couplings to such apply only to specific risks existing at date water pipe in the first and second stories, of policy. Gorman v. Hand-in-Hand by means of which and the force pump Ins. Co., Irish Rep. 11 C. L. 224. water could be thrown upon those floors 251.- Assured was allowed to prove, and into the basement, by the steam pump, under objection, that he told people, who and that, according to the usage of the "fac-put up at his house, that he did not keep tory parlance," neither the attic nor the a hotel. Held, that this was conversation basement were spoken of as "floors." characterizing his act, and was proper to

66

Caused by Negligence.

show in what way he received his guests. Partridge v. Commercial Fire Ins. Co., 17 Hun 95 (N. Y.)

upon the same property-a gin housedescribed by another name, but equally well known by both names, binds the 252.- Evidence of what assured said company, who cannot set up its rule of when he bought the property, as to his limitation as to amount on the kind of intention to keep a hotel, is properly ex-risk. * Owen v. New O. Ins. Co., 19 Ins. cluded, as it does not tend to show what L. J. 670 (La.) he in fact did. Id.

259. A condition in a fire policy upon 253.- A special provision of the Wis- a canning house and the machinery, consin statutes prohibiting town insur- canned goods, etc., therein, that it shall ance companies from insuring school-be void if the premises are occupied otherhouses without a majority vote of the wise than for storage, is not violated by members applies to a policy originally is- the fact that after the canning season was sued upon a dwelling, but which is sub- over and the help discharged the premises sequently converted into a schoolhouse. were cleared up and cleaned, and a fire The word "schoolhouse means a house was built in the furnace under the engine or building in which a school is kept, and to empty the boiler and water pipes to is not restricted to a district schoolhouse. prevent their freezing during the winter, Luthe v. Farmers' Mutual Fire Ins. Co., when the building was to be used exclu12 Ins. L. J. 30; 55 Wis. 543. sively as a place for storage. * Krug v. German Fire Ins. Co., 1 Pa. Adv. R. 162; 23 Atl. Rep. 572.

254.- The word "store" is the equivalent of the English word "shop," and therefore it is no misdescription to call a bakery and a restaurant a store. Richards v. Washington Fire & M. Ins. Co., 15 Ins. L. J. 598; 60 Mich. 420.

255.- A building had been injured by fire, and while in its injured condition was insured as a "building;" shortly after it was totally destroyed by fire. In an action against the insurance companyHeld (1) that, in the absence of averment and proof of fraud in procuring the policy, the structure would be held to have been a building at the time the policy issued; (2) the fact that the total loss resulted from both fires could not affect the liability of the makers of the policy in force at the time the total loss occurred. Hamburg-Bremen Ins. Co. v. Garlington, 66 Tex. 103.

256.- Under a provision that, when the building shall be used as a warehouse, the rate will be changed, where the insurer knew that the premises were to be used for storing cotton, such storing will not avoid the policy. Steers v. Home Ins. Co., 38 La. An. 952.

257.- Permission to use a building for "any mercantile purpose "does not authorize its use for a restaurant. * Gar

retson v. Merchants' & B. Ins. Co., 19 Ins. L. J. 913; 45 N. W. Rep. 1047; 81 Iowa, 727.

258.- In the absence of intention to deceive, the obtaining of a second policy

Loss or Damage Covered.

to carry on. Brown v. Kings County Fire Ins. Co., 31 How. 508 (N. Y.)

7.- Negligence, although it may have caused the fire, will not avoid the policy. Mickey v. Burlington Ins. Co., 35 Iowa 174; s. P. Jameson v. Royal Ins. Co., Irish Rep., 7 C. L. 126.

should suffer by fire," on stock and uten- was permitted, by the terms of the policy, sils in sugar house. By reason of negligence, in building fire without unclosing register on top of chimney, which has usually been closed the night before, the rooms were filled with sparks and smoke, and the walls were blistered and the sugar injured by the heat; but there was no actual fire. Held, not a loss within the policy. Austin v. Drewe, 6 Taunt. 436; 1 Eng. C. L. 691; Austin v. Drewe, 4 Camp. N. P. 360 (Eng.)

2. A loss by fire, occasioned by the mere fault and negligence of the assured, or his servants, or agents, and without fraud or design, is a loss within the policy. Columbia Ins. Co. v. Lawrence, 10 Pet. 507 (U. S.)

3.- Negligence of the insured's servants or agents does not, in the absence of fraud, prevent recovery on the policy. Williams v. New England Mut. Fire Ins. Co., 31 Maine 219; St. John v. American Ins. Co., 1 Duer 371, aff'd, 11 N. Y. 516; Hynds v. Schenectady County Mut. Ins. Co., 16 Barb. 119, aff'd, 11 N. Y. 554; Gates v. Madison County Mut. Ins. Co., 5 N. Y. 469; Catlin v. Springfield Ins. Co., 1 Sumner 434 (U. S. Cir.); Matthews v. Howard Ins. Co., 13 Barb. 234 (N. Y.)

8. Loss or damage covered. A fire happening in the vicinity of the building containing the insured goods, the assured, with the consent of the underwriters, bought some blankets and spread them over the windows and doors and thus saved the building and contents, but the blankets were destroyed: Held, that the | loss of blankets was not one protected by the policy, but that assured might claim on the ground of a sacrifice made by them for the preservation of the property endangered by the fire, and for a proportion of which sacrifice they were equitably if not legally entitled to recover. Held, further, that the adjoining buildings, which might also have been destroyed had the store containing the insured goods taken fire, and on which the defendants had underwritten, were not liable to pay a portion of this expense, as the contribution must be limited to the building and property therein, immediately saved. Welles v: Boston Ins. Co., 6 Pick. 182 (Mass.)

9. It having been found by verdict of a jury, that a building protected by a policy, had been injured by the falling of the gable of another house, in consequence of fire in that house; heid, that

4.- Negligence in absence of fraud or willful misconduct no defense. Whitehurst v. Fayetteville Ins. Co., 6 Jones Law 352 (N. C.); St. Louis Ins. Co. v. Glasgow, 8 Mo. 713; Henderson v. Western Ins. Co., 10 Rob. 164 (La.); Johnson v. Berkshire Ins. Co., 4 Allen 388 (Mass.); Mueller v. Putnam Fire Ins. Co., 45 Mo. 84; Mary-the insurers were liable although the land Fire Ins. Co. v. Whiteford, 31 Md. 219; Cumberland Valley Co. v. Douglass, 58 Pa. 419.

5.- Carelessness or negligence, as such, cannot be held to be a defense to an action on a policy of insurance. In the absence of fraud, it is the proximate cause of the loss that is to be considered. If, however, the acts done or neglected to be done are of a character which tend to show design or fraud, they would be admissible. Huckins v. People's Mut. Ins. Co., 11 Fost. 238 (N. H.)

6.- Where a risk has not been increased within the conditions of a policy, it is not a defense to an action upon it, that the plaintiff might have been more careful in the management of a business which he

house insured had not been on fire, and the gable of the other house had stood for two days after the fire was extinguished, and fell in the course of operations by order of the Dean of Guild, with the view of taking it down. Johnston v. West of Scotland Ins. Co., 7 Cas. Court of Sessions 52 (Scot.)

10.- A policy on merchandise agreed to make good to the assured all such loss and damage to the property as should happen by "fire." In the great fire in New York, the store containing the goods insured, was, by order of the mayor, blown up with gunpowder to prevent the spread of the conflagration. At the time this was done, the buildings all around were on fire, and were afterward

Loss or Damage not Covered

16. Loss or damage not covered. Aby collision and fire broke out, causing an loss caused by a freshet is not within the terms of an insurance against loss caused by fire or storm. Stover v. Ins. Co., 3 Phil. 38 (Pa.)

abandonment, and the fire continued until the vessel sank, the goods being damaged by water only in the sinking, held, that the question as to whether the fire 17.- Where a policy on a theatre con- or the collision was the proximate cause tained a clause that the insurers should of loss was for the jury. Opinion of exnot be liable on account of any loss by a perts not admissible. New York and fire originating in the theatre proper, and Boston Express Co. v. Traders' and Mea brick wall of the building became so chanics' Ins. Co., ; 11 Ins. L. J. 278; 12: heated from without as to set fire to the Ins. L. J. 706; 132 Mass. 377; 135 Mass. wood work within the theatre; held, that | 221,

General Rules.

31.- The words of a policy, "direct loss or damage by fire," mean loss or damage occurring directly from fire as the destroying agency, in contradistinction to

23. Other special cases limiting or to prove that the loss arose from causes defining loss or damage. The insur- insured against and not from causes exance of the plaintiffs was expressed in the cepted against, as, for example, not from policy to be "on their paper mill and per- a hurricane. *Pelican Ins. Co. v. Troy manent fixtures, $1,200; on their machin- Co-operative Assoc, 77 Tex. 225. ery, $800, on condition that the applicants take all risk from cotton waste, situate as described in their application." Held, that the clause "on condition that the applicants take all risk from cotton the remoteness of fire as such agency. waste," did not constitute a condition in its legal sense; bnt was to be regarded as a proviso, expressing the intention of the defendants not to insure against the risk of fire originating in cotton waste, nor to pay a loss caused by fire thus originating. If the company claim that the loss was not within the policy, because of this proviso, it is for them to allege and prove it. Kingsley v. New England Mut. Fire Ins. Co., 8 Cush. 393 (Mass.)

24.-Actual ignition or combustion not essential to sustain claim of loss or damage by fire. Transatlantic Fire Ins. Co. v. Dorsey, 12 Ins. L. J. 537; 56 Md. 70.

25.- Not limited to loss by actual ignition but extends to consequences. Ballerstraci v. Firemen's Ins. Co., 34 La. An. 844.

26.- The word fire does not include heat of a degree too low to cause ignition. Gibbons v. German Ins. Inst., 30 Ill. App. 263.

27.-Where insurance is for specific amounts on specific kinds of property, assured can only look for indemnity to the particular fund which was intended to indemnify the particular property. Carlwitz v. Germania Fire Ins. Co., 12 Ins. L. J. 127 (U. S. Cir.)

28. The insurer is liable, if the proximate cause of the loss be one of the perils insured against, even though the remote cause be the negligence of the assured. Lebanon, etc., Ins. Co. v. Kepler, 106 Pa.

28.

29.- A suit against several insurance companies, some of which are liable for loss by fire and others only for a maritime loss, is within the jurisdiction of equity, where a vessel was damaged by stranding, and a total loss then occurred by fire, of which the stranding was the proximate

*California Ins. Co. v. Union Compress
Co., 133 U. S. 387; 33 L. ed. 730; 7 R. R. &
Corp. L. J. 363; 19 Ins. L. J. 385; 10 Sup.
Ct. Rep. 365.

32. Cross references.
Section two.

Subd. I. Measure of damage. No. 1 et seq.

Section four.

Subd. V. Fraud and false swearing. Nos. 4, 133, 137, 159. | Section six.

Subd. Explosion.

Section fourteen. Removal. Nos. 1, 2, 5, 7, 9.

VII. PAROL CONTRACT.
General rules.

As affected by acts or authority of
agent.

When subject to conditions in
policy.
Questions for jury.
When sufficient.
When insufficient.
How enforced.
Other special cases.
Cross references.

1. General rules. A contract of insurance need not be in writing by common law. And an insurance for a year, including its date, as the act does not extend beyond one year, is within it, and therefore not contrary to the statute of frauds. Sanborn v. Fireman's Ins. Co., 16 Gray, 448 (Mass.)

2. Under an oral contract of insurance, the insured may recover for a loss, although after it occurred, and while the insurers were ignorant of it, he paid them Fuller v. Detroit F. & M. Ins. Co., the premium, and received from them in 36 Fed. Rep. 469; 1 L. R. A, 801. lieu of such subsisting contract, a written 30. The burden is upon the insured policy which was not binding on the in

cause.