Washington Fire Insurance v. Davison

Miller, J., delivered the opinion of the Court. This suit was brought by the appellees to recover for a loss by fire on their Sulphuric Acid Manufactory, stock, machinery and chemical apparatus connected therewith, situated on Fort avenue near Baltimore. In the policy sued on, after risks on two other buildings, the subject matter destroyed and for which recovery is sought is thus described: “ $ 3,500 on a two story brick and frame building used as a Sulphuric Acid Manufactory, about 500 feet south of the first named building; $3,500 on stock, and $225 on machinery including chemical apparatus contained in and out of the factory building and connected therewith.” ¹⁰² •" At the ti’ial six exceptions were taken by the defendant, five to rulings upon questions'of evidence, and the last to the action of the Court upon the prayers offered on either side. These several rulings are before us for review on this appeal, and will be considered in the order in which the record presents them. 1st.

In the absence of any express provision on the subject in a policy against fire, it is settled law that the making of repairs or additions to, or the erection of adjacent buildings whereby there was a material increase of risk by fire, to the property insured, will not prevent a recovery unless the loss was produced in xvhole or in part by such increase of risk. The defendant’s counsel having admitted he did not propose to show that the loss in this case had been occasioned in whole or in part by the alleged increase of risk, the Court -was clearly right in rejecting the offer in the first exception, to prove that building No. 3 was erected immediately adjacent to the building insured and that at the time of the fire carpenters were at work finishing its roof, and that the erection of that building was a material increase of risk to the insured property, unless the fact that carpenters were at work upon No. 3 at the time of the fire, was admissible for the purpose of showing there had been a carpenters’ risJc on the insured premises which avoided the policy under the seventeenth condition thereto annexed. This latter position was strongly pressed in argument, but in our judgment the policy will not bear the construction contended for. In the body of the policy it is provided that if .the insured premises shall be used for the purpose of carrying on therein any trade or occupation, or for storing or keeping therein any articles, goods or merchandise denominated hazardous, or extra-hazardous or specially hazardous, in the conditions annexed to the policy, it shall be of no force or effect unless the conditions in that respect are complied with.

The seventeenth condition provides that certain risks thereafter mentioned being considered hazardous will subject the insured to a higher rate l>f premium, and those, therefore, ¹⁰³ desirous of having the liberty of using their premises for such purposes must have the same inserted in their policies which otherwise will be void. Then follow three sections or classifications of various articles of merchandise, trades, occupations and buildings used for particular purposes, headed: 1st. Merchandise generally — Hazardous. 2d. Trades — Extra Hazardous ; and 3d.

Risks — Specially Hazardous: and in the latter is included the term “ carpenters” in the same enumeration with “barns and stables and contents,” “breweries,” “cam-phene and burning fluids.” “hay, straw and provender,” “ lumber,” “ manufactories,” “ mills,” &c. It is very obvious from the proviso in the policy and the terms of this condition that what is here prohibited by the term “ carpenters” is the use of the insured premises for the purpose of carrying on therein the work or business of a carpenter or converting them into a carpenter’s shop, just as the use of the premises for the purpose of storing “ camphene and burning fluid” is provided against by the use of those words in the same connection. It has no reference or application to the erection by carpenters of an adjacent building on adjacent ground when the insured premises are not used by them as a work-shop for that purpose. To avoid the policy under this condition, the insured premises must themselves be used for the purpose of carrying on the prohibited trade or for the storage of the prohibited articles.

The testimony offered was, therefore, inadmissible upon any ground and was correctly rejected. 2d. The offer in the second exception to prove by the defendant’s secretary, as an expert in insurance, that the term “carpenters” thus used in this policy was generally understood in the office of the defendant to refer to the -employment and work of carpenters in erecting or adding to buildings insured was properly rejected. The policy in this respect is sufficiently plain and will admit only of the construction we have placed upon it. But if the term “ carpenters,” as here used, could be regarded as in any degree ambiguous so as to admit of parol evidence or usage to explain it, it was not competent ¹⁰⁴ to do so by showing merely what it was generally understood to mean in the office of the defendant, without any proof or proffer of proof that the plaintiffs knew of such understanding.

The scope of the inquiry is altogether too narrow. To allow an underwriter to escape responsibility by proof of a general understanding in his own office of the meaning of the terms of his policy would be to transform such contracts, justly denominated contracts ubérrimos fidei, into mere traps for the unwary and confiding. The law will never permit the rights of the assured to rest upon any such fluctuating and unsafe basis. 3d. We cannot perceive upon what ground error can be predicated of the refusal by the Court to allow the question set out in the third exception to be asked: Whether it was, or not, an uniform usage of this company, to endorse written permission on all its policies, in case of an alteration of, or addition to insured premises, whereby the risk of fire was materially increased, was a matter wholly immaterial to the case.

There was no requirement of the policy to that effect, and the usage, if it existed, was wholly gratuitous, and could not in any manner have affected the insured, even if they knew it. 4th. Davison, one of the plaintiffs, when examined as a witness, swore that he was present when McGinnis and Mil-nor, the secretaries of the two companies, examined the premises previous to taking the risks and pointed out to them the plan of the buildings about to be erected. McGinnis and Milnor, in their examination for the defendant, swore that Davison was not present on that occasion. Their testimony, therefore, went to a substantial impeachment of the credibility of Davison.

The plaintiffs then proved that at the time of the examination, McGinnis did a certain act and made a certain remark in regard to the building, which he had not communicated to Davison. The latter was then recalled and swore to the occurrence and remark. The plaintiffs then proved by Symington, that on the same evening or the next ¹⁰⁵ morning, after the visit of McGinnis and Milnor, being the next time he saw Davison, after the visit the latter mentioned to witness the occurrence in question and the remark made by McGinnis. To this testimony the defendant excepted, but the Court allowed it to go to the jury, and to this ruling the defendant took its fourth exception.

We are clearly of opinion the testimony was admissible to corroborate Davison, whose credibility had thus been impeached by the defendant’s witnesses. The ruling falls directly within the decision in Cook vs. Curtis, 6 H. & J., 93 , and the rule of evidence of which that case is an illustration. 5th. By the plain reading of the fifth exception, a question >vas asked one of the plaintiffs’ witnesses, in his examination in chief, which he was allowed to answer, and after it had been answered, the defendant objected to it as a leading question. This objection the Court refused to sustain.

The objection came too late. When the objection is to the question and not to the answer, it must be made before the question is answered. The opposing party cannot allow the answer to come in and then if it does not suit him, object to the question. When the objection is to testimony it must be taken when the offer is made, if the ground of objection is known or apparent, and not after it has gone to the jury, and the same rule applies to a case like this.

The alleged objection to the question that it was leading, was just as apparent when it was asked, as after it had been answered. It is therefore unnecessary to inquire, whether the objection would have been well founded, or not, if it had been made In due time. 6th. The sixth exception presents for review the prayers, which were offered on either side. The plaintiffs’ first prayer, that the defendant’s liability under the policy, (which contains no clause making it void for that reason,) was not affected by any additions to the factory, machinery or apparatus insured, made after the execution of the policy, unless the loss was occasioned in whole ¹⁰⁶ or in part by suck additions, merely announces the proposition, which we have already decided in passing upon the first exception and was correctly granted.

One of the main points of controversy relates to the erection of the shed by which the steam boiler and other apparatus connected with the manufacture of sulphuric acid, in the insured building, were covered and protected. There was proof that at the time the secretaries of the two companies visited and examined the premises with a view of taking the risks the insured building was completed, or nearly so, but the business of the manufactory had not then commenced; that at a distance of about twenty-two feet'from this building and parallel therewith, the brick foundation for another factory for the same purpose .(called in the evidence building No. 2) was laid; that the steam boiler and smoke stack were erected but not covered; and that neither the evaporating pan nor the nitric acid still had been put up, but the brick and stone foundations for both had been laid and completed, and the still itself was lying on the premises. All these fixtures were situated between the insured building and the •foundation of No. 2, and nearer to the latter. It is conceded the assured had the right to cover and protect them in some manner, without affecting the validity of the policy.

Instead of erecting separate sheds over each, the plaintiffs proceeded to erect and complete No. 2, and then built a shed covering the entire space between the two buildings, and extending their entire length, resting upon timbers placed across from one to the other. The fire originated on this shed,