Martin v. Mutual Fire Insurance

Miller, J., 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 ⁵⁷ were 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 ⁵⁸ therefore 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