Adair v. Southern Mut. Ins. Co

• Decision Date: 21 April 1899
• Parties: ADAIR. v. SOUTHERN MUT. INS. CO.
• Court: Georgia Supreme Court

33 S.E. 78

107 Ga. 297

ADAIR.

v.SOUTHERN MUT. INS. CO.

Supreme Court of Georgia.

April 21, 1899.

Insurance — Breach of Conditions — Increase of Risk—Negligent Use of Property— Question for Jury.

1. A provision in a policy of fire insurance declaring it shall be forfeited "by any change in the use or condition of the building, including additions or repairs, or by the erection of other buildings, or in any other manner by which the degree of the risk is increased, unless due notice is given to the company, and a new agreement is entered into, " applies to such changes as are of a permanent nature, and not to mere temporary changes in the use and occupation of the premises. Therefore a mere temporary use of a machine for threshing grain for a few hours on the premises where the insured property is located will not, per se, work either a forfeiture or a suspension of such policy.

2. If, however, the insured, or one to whom he has intrusted the entire custody of the property, and given full freedom in its use, should, by doing any act or acts which one in the exercise of ordinary care and diligence would not do under like circumstances, so change the use and occupancy of the premises as to materially increase the hazard of the insurance, the insurance company would not be liable for a loss directly resulting as a consequence of such increase in the risk.

3. There was sufficient testimony introduced by the plaintiff in this case to require the submission to the jury of the issue of fact as to whether or not there had been such negligent use of the property in question as to materially increase the risk of insurance and to cause the damage complained of, and the judge therefore erred in granting a nonsuit.

(Syllabus by the Court.)

Error from superior court, Hall county; J. J. Kimsey, Judge.

Action by Augustus D. Adair, administrator of Sarah C. Hudson, against the Southern Mutual Insurance Company. Judgment for defendant, and plaintiff brings error. Reversed.

W. R. Hammond, for plaintiff in error.

Erwin & Erwin and S. C. Dunlap, for defendant in error.

LEWIS, J. Suit was brought by Augustus D. Adair, as administrator of the estate of Sarah C. Hudson, deceased, against the Southern Mutual Insurance Company; the same being an notion for the recovery of a loss on a policy of fire insurance. This policy was issued to the plaintiff on the 22d of January, 1897, and "insures estate of Mrs. Sarah C. Hudson against loss or damage by fire to the amount of twelve hundred dollars for the term of one year"; one thousand dollars of said sum being on a house that was occupied by the family of the deceased as a dwelling, and the balance on furniture in the house. After plaintiff's evidence had closed, the judge granted a nonsuit on motion of defendant's counsel, upon which error is assigned by the plaintiff in his bill of exceptions. It appears from the record that at the time of the fire the premises were in possession of the husband of deceased, who, with his children, occupied the dwelling. He had a small quantity of wheat, that had been placed on the premises where the dwelling was located, and had procured the owner of a threshing machine run by an engine to move his machine on the premises for the purpose of threshing this wheat. The engine was located about 85 feet from the dwelling. It had no spark arrester. The separator was located about halfway between the engine and the house. As the grain was being threshed, the straw gathered near the separator, some of it falling within a few feet of the dwelling. The work of threshing the grain required only about two hours. When it commenced, the weather was calm, —a gentle breeze blowing from the house towards the engine. Plaintiff's witnesses testified that they regarded the house in no danger from fire, with the weather in that condition; that there were a number of workmen engaged about the machinery, —some 10 or 15; and that, even if a spark from the engine had ignited the straw, it could readily have been extinguished, without material danger to the house. The owner of this machine testified that he had been engaged in such business, off and on, for 10 or 15 years, using the same character of engine he had then, threshing thousands of bushels of grain, often, in a season, and he never, before this fire, knew a pile of straw to catch fire from the engine; that often the engine was stationed near houses, barns, stables, etc., as this one was on the day of this fire, and no loss from fire had ever occurred. Plaintiff testified to the same effect After the work was about half over, there came an unexpected and sudden gust of wind, called by the witnesses a "dry storm, " which blew very violently from the engine towards the dwelling. It was described as coming in a whirl, and as being one of the most violent winds plaintiff ever saw, except a cyclone on one occasion. About the same time, fire was noticed in the straw. It was presumed it came from a spark from the engine, though the witnesses did not know that as a fact. Strong efforts were at once made to extinguish it, but the wind blew so violently as to carry the straw against the house, fan the flames, and blow them for many feet beyond. This wind blew the belt from the machinery. The efforts to save the house proved fruitless, and it was destroyed.

1. The only portion of the policy sued upon, material to be considered in determining the issues involved in this case, is the following clause: "Policies shall be forfeited, first, by any change in the use or conditions of the building, including additions or repairs, or by the erection of buildings, or in any other manner by which the degree of risk is increased, unless due notice is given the company, and a new agreement entered into." It is insisted by counsel for defendant in error that the use of these premises by placing thereon this machinery, and using the same in threshing grain, amounted to a forfeiture of the policy, especially as it caused the fire which destroyed the property insured. We do not think, in the first place, that the clause has any reference to such temporary use of the premises, but that it refers to changes in the use or condition of the buildings, or to changes in any other manner, of a permanent nature, by which the degree of risk is increased. Where premises are occupied as a home, on which is located the dwelling of a family, the use of them is constantly susceptible to changes of a temporary nature, for the convenience of the occupants, and to facilitate the conduct of business pertaining to the industries of the members of the household. We think it would be going a long way towards construing these policies liberally in favor of insurance companies, as well as liberally in favor of the doctrine of forfeiture, to hold that it was intended by the contract that every such temporary change which may for the moment increase to some degree the risk of fire would necessarily work a forfeiture of the policy at the option of the company. There is no person, perhaps, so diligent as to live from day to day with an equal and uniform degree of caution against accidents of this sort. An important thought to consider in this connection is that while a permanent use of the premises in a certain manner from day to day might materially increase the hazard from fire, yet a mere temporary use for a few hours, while the occupants are vigilant and on the alert to prevent fire, might not be considered as a material risk at all, although the dwelling may be in a little more danger from fire on such special occasions than is generally the case. We think our view of the construction that should be given the terms of the clause above quoted is demanded by the well-known elementary principle of law governing the construction of such instruments, namely—First they should be construed strictly against the company or party preparing them; and, second, they should be so construed as to avoid, if possible, a forfeiture. We are satisfied that these views, are sustained by a decided weight of authorities, some of which we will now briefly allude to, to show the generaltrend of Judicial decisions on this line. In discussing this provision in policies touching the use and occupancy of premises so as not to increase the risk from fire, we quote the following from 7 Am. & Eng. Enc. Law (Old Ed.) 1035: "The change contemplated by the provision is not a mere temporary or incidental change, but a permanent and substantial change." Quite a large number of authorities are cited to support that text. And in this connection we call attention to instances given on page 1034 of the same volume, which have been held by courts not to constitute a change: "The making of repairs to a dwelling house; shutting down a factory temporarily; running the engine and certain shafting of a mill or factory at night, when the policy recites 'run by daylight only'; changing from a dwelling to a boarding house; changing occupants; mixing and keeping paints in a barn, described in the policy as 'used for hay, straw, grain unthreshed, stabling, and shelter, ' while painting the house on the same premises; ceasing to occupy the premises; lighting temporarily with gasoline; mortgaging the property insured." In the case of Insurance Co. v. Poster, 90 111. 121, it was held that: "An occasional occupation of a room of a building insured, by a carpenter in his business, is not such a violation of a clause in a policy which forbids that during the term of insurance the premises should be used for any trade or business denominated 'hazardous, ' as will defeat a recovery in case of loss. An occasional day's work by a carpenter in a part of the house will not avoid such a policy." In Loud v. Insurance Co., 2 Gray, 221, it appeared that, by express directions of the assured, a certain stove in the building was not to be used; the same being in an unsafe condition. The owner allowed the house to be occupied temporarily as...