Bouchard v. Dirigo Mut. Fire Ins. Co.

• Decision Date: 05 January 1916
• Citation: Bouchard v. Dirigo Mut. Fire Ins. Co., 114 Me. 361, 96 A. 244 (Me. 1916)
• Parties: BOUCHARD v. DIRIGO MUT. FIRE INS. CO.
• Court: Maine Supreme Court

96 A. 244

114 Me. 361

BOUCHARD

v. DIRIGO MUT. FIRE INS. CO.

Supreme Judicial Court of Maine.

Jan. 5, 1916.

On Motion from Supreme Judicial Court, Somerset County, at Law.

Action by Belonie Bouchard against the Dirigo Mutual Fire Insurance Company.Verdict for plaintiff, and defendant moves generally for new trial.Motion overruled.

Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ.

Fred F. Lawrence, of Skowhegan, for plaintiff.S. W. Gould, of Skowhegan, Newell & Woodside, of Lewiston, and Turner Buswell, of Solon, for defendant.

HANSON, J.This is an action on a fire insurance policy issued August 22, 1911, on the plaintiff's buildings and personal property.The property was destroyed by fire on the 28th day of November, 1912.The jury returned a verdict for the plaintiff in the sum of $1,534.63, and the case is before the court on the defendant's general motion for a new trial.

At the first trial of this case the presiding justice ordered a nonsuit, and the plaintiff excepted.The exceptions were sustained.113 Me. 17, 92 Atl. 899, L. R. A. 1915D, 187.The issue in the former trial was "whether the fact that the fire was caused by the operation of a gasoline engine by the plaintiff for threshing grain in the barn floor avoided the policy, either because it violated the prohibited articles clause or the clause against increase of risk."

Inasmuch as the testimony at both trials is substantially the same, we find nothing in the case at bar to justify a reversal of our opinion as in 113 Me. 17, 92 Atl. 899, L. R. A. 1915D, 187.But before the second trial the defendant was allowed to file an amendment alleging that:

"The fire causing the damage in suit was caused through the gross negligence of the plaintiff and his servants and agents in the management of a gasoline engine used on the premises for threshing grain at the time of the fire."

In their brief counsel for the defendant say:

"The defendant does not base its contention upon the mere definition of the plaintiff's negligence as 'gross negligence,' but upon the conduct of the plaintiff under all the circumstances of the case as tending to show his want of good faith and misconduct."

The other issues having been determined in the former case, it remains to consider the question of gross negligence thus raised, as set. out in the amendment.

Counsel cite Davis v. Western Home Insurance Co., 81 Iowa, 496, 46 N. W. 1073, 10 L. R. A. 359, 25 Am. St. Rep. 509, in support of their claim that the negligence of the plaintiff relieves the defendant from liability.In the policy in that case one of the conditions was:

"That said policy shall be void and of no effect if * * * there be any change in the exposure, by the erection or occupation of adjacent buildings, or by any means whatever within the control and knowledge of the assured."

A careful reading of the case discloses that the decision turned upon the construction given to the clause containing the word "exposure," and the court say:

"It will be observed that the condition of the policy in question is against 'change in exposure.'The word 'exposure' means 'the state of being exposed;''openness to danger; accessibility to anything that may affect, especially detrimentally.'It is a word much used in the business of insurance, in the sense of this definition, to indicate danger of destruction or injury by fire to property insured from external sources, and not inherent to the property.* * * Exposure from 'the erection or occupation of adjacent buildings' is especially prohibited by specific language.All exposures 'by any means whatever' are forbidden by general language."

Defendant's counsel say that the use of the gasoline engine was not negligence merely, the doing of a thing carelessly that he had a right to do, but rather misconduct in that he had no right to place the engine and exhaust so that fire would probably result, and that his act was culpable negligence under the reasoning laid down by Shaw, C. J., in Chandler v. Worcester Mutual FireIns. Co., 3 Cush.(Mass.) 328.

The illustrations used in Chandler v. Worcester Fire Ins. Co., 3 Cush. (Mass.) 328, supra, of the instances where inaction or nonaction in the presence of actual danger, with opportunity and ability to control the same, as in the neglect to remove burning coals, or to put out a fire which with the least attention could be extinguished, present situations where the conclusion is irresistible that such neglect amounts in law to constructive intent, and would render a policy void.But no such condition existed here.The plaintiff had used the same machinery several times before, both in and outside of his barn, and no fire had occurred.The machine was equipped for use in and out of buildings.It had been so used in the neighborhood.This fact was well known in the neighborhood, if not known to the company, and it must have had an important bearing upon the issue when presented to the jury, justifying at least the conclusion that the plaintiff had not been guilty of great or gross negligence.The following is the controlling doctrine in this class of cases, and is uniformly accepted as the true one:

"Unless there be in the policy specific limitations, the risk extends to all losses by fire, death or accident, or whatever cause of loss or injury be insured against, however they be occasioned."May on Insurance, § 402."And where a fire policy expressly excepts certain occasions of fire, all other occasions or causes of fire are included in the risk."Id., citingInsurance Co. v. Transp. Co., 12 Wall. 194, 197, 20 L. Ed. 378."Mere carelessness and negligence, however great in degree, of the insured, or his tenants or servants, not amounting to fraud, though the direct cause of the fire, are covered by the policy."Id.§ 408, and cases cited.

That writer further says:

"One of the principal objects of insurance against fire is to guard against the negligence of servants and others; and therefore, while it may be said generally that no one can recover compensation for an injury which is the result of his own negligence or want of care, the contract of insurance is excepted out of the general rule."

And that text-writer Is equally positive in his statement of the rule:

"That negligence in a matter as to which the insurers expressly stipulate that they will not assume the risk—as where ashes are placed by a boy in wooden vessels, the insurers stipulating that they will not assume the risk if ashes are, allowed to remain in wood, although the fact was unknown to the insured, and was done without his orders, and contrary to the usual practice—will work a forfeiture."Id.§ 408, note 3.

The doctrine of the last citation is the same as in Davis v. Insurance Co., supra, where there was an express stipulation as to exposure by erection or occupation of adjacent buildings.In ...