Bouchard v. Dirigo Mut. Fire Ins. Co.

• Decision Date: 03 February 1915
• Parties: BOUCHARD v. DIRIGO MUT. FIRE INS. CO.
• Court: Maine Supreme Court

92 A. 899

113 Me. 17

BOUCHARD

v. DIRIGO MUT. FIRE INS. CO.

Supreme Judicial Court of Maine.

Feb. 3, 1915.

Exceptions from Supreme Judicial Court, Somerset County, at Law.

Action by Belonie Bouchard against the Dirigo Mutual Fire Insurance Company. To an order of nonsuit, plaintiff excepts. Exceptions sustained.

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

Fred F. Lawrence, of Skowhegan, for plaintiff.

S. W. Gould, of Skowhegan, for defendant.

CORNISH, J. Action on a fire insurance policy for loss of plaintiff's farm buildings and personal property. The presiding justice ordered a nonsuit The main issue is 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.

1. Prohibited Articles.

The standard policy contains this provision, among others:

"This policy shall be void * * * if camphene, benzine, naptha or other chemical oils or burning fluids shall be kept or used by the insured, on the premises insured"

—with certain exceptions not material here. It is conceded that gasoline is within the prohibited list, and the crucial question is whether, under the facts of this case, it was "kept or used" within the inhibition of the contract. The record shows that the plaintiff had lived on this farm in Skowhegan since the spring of 1908, and had been insured by the defendant during that time, the policy in suit being a renewal of a former policy in the same company; that each year he had employed men to thresh his grain by the use of a gasoline engine in precisely the same manner as on the day of the fire; that these men traveled from farm to farm doing the work, and that practically all of the grain in that community is threshed in the same manner, the engine being placed within or without the barn according to the location of the grain; that in 1912 the plaintiff, with one Herbert, had purchased the engine and had set it up in his barn for the purpose of threshing his grain, and in about an hour after the operation began the fire occurred, in precisely what manner or from what immediate cause it does not appear. Under these circumstances, did the plaintiff "keep or use" gasoline, within the meaning of the policy? We think not.

In the first place, the words themselves usually import something more than temporary possession or possession for a temporary purpose. "To keep" implies something more than merely to have. It carries with it the idea of continuance and duration. Such is its common acceptation, as "to keep a secret," "to keep the peace," "to keep a promise," "to keep a certain line of goods," "to keep store," or to "keep house." Such is its definition by lexicographers. "To keep" is "to have and retain in one's control or possession" (Standard Die.); "to continue to hold;" "to conduct or carry on;" "to have habitually in stock for sale" (Webster, New Int. Dic.).

The verb "to use" in this connection, and in collocation with "keep," naturally suggests the same idea of employment on more than a single occasion. It implies the customary or habitual rather than the accidental or the temporary. These definitions have the sanction of authority. In Thompson v. Equity Fire Ins. Co., L. R. App. Cas. 1910, 592, a building was insured, and the words were "keep or store," instead of "keep or use," as here; and the court held that a small quantity of gasoline in a stove being used for cooking purposes, which caused the fire, no other gasoline being in the building, was not an infringement of the condition. The court say:

"What is the meaning of the words 'stored or kept,' in collocation and in the connection in which they are found? They are common English words with no very precise or exact signification. They have a somewhat kindred meaning and cover very much the same ground. The expression as used in the statutory condition seems to point to the presence of a quantity not inconsiderable, or at any rate not trifling in amount, and to import a notion of warehousing or depositing for safe custody or keeping in stock for trading purposes. It is difficult, if not impossible, to give an accurate definition of the meaning; but if one takes a concrete case it is not very difficult to say whether a particular thing is 'stored or kept,' within the meaning of the condition. No one probably would say that a person who had a reasonable quantity of tea in his house for domestic use was 'storing or keeping' tea there; or to take the instance of benzine, which is one of the proscribed articles, no one would say that a person who had a small bottle of benzine for removing grease spots or cleansing purposes of that sort was 'storing or keeping' benzine. The learned counsel for the respondents contend that the presence of gasoline on the premises was enough to bring the statutory condition into operation, and he referred to the accident which did happen as an example of the danger against which precautions are required. But it is obvious that the danger guarded against is not ignition caused by the article itself but the risk of spreading or increasing the conflagration when once started and in progress by the presence of highly inflammable or explosive material. The fact that the fire in the present case was caused by the gasoline is irrelevant. And the fatal objection to the defendant's contention is that it gives no effect whatever to the words 'stored or kept,' and the meaning which the defendants seek to attribute to it might possibly or even probably prevail if the words in question had been omitted altogether, and the condition had excluded liability for loss or damage occurring while * * * gasoline * * * is * * * in the building insured. Some meaning must be given to the words 'stored or kept.'"

While the words in the case at bar are "kept or used" instead of "kept or stored," as in the English case, and therefore the idea of storage is embraced in the one instead of use in the other, yet both have the word "keep," and, so far as the reasoning in the cited case refers to that word, it carries weight in our present discussion. "The word 'kept,' as used in the policy [of the same form as in the case at bar], implies a use of the premises as a place of deposit for the prohibited articles for a considerable period of time," says the Massachusetts Court in First Cong. Church v. Insurance Co., 158 Mass. 475, 33 N. E. 572, 19 L. R. A. 587, 35 Am. St. Rep. 508. A similar definition, excluding the idea of mere temporary presence, is given in Clute v. Insurance Co., 144 Wis. 638, 129 N. W. 661, 32 L. R. A. (N. S.) 240; Smith v. Insurance Co., 107 Mich. 270, 65 N. W. 236, 30 L. R. A. 368. And see note 13 Ann. Cas. 542.

The definition of "use" was discussed by the court in Mears v. Insurance Co., 92 Pa. 15, 37 Am. Rep. 647, as follows:

"We are not disposed to give to the word 'use' in this policy the narrow construction claimed for it. It must have a reasonable interpretation, such as was contemplated by the parties at the time the contract was entered into. * * * What is intended to be prohibited is the habitual use of such articles, not their exceptional use upon some emergency. The strict rule claimed by the defendants would prevent the assured from painting his house or cleaning his furniture, as it would be difficult to do either without using some of the prohibited articles."

The court followed the same definition of "use" in Lebanon County v. Insurance Co., 237 Pa. 360, 85 Atl. 419, 44 L. R. A. (N. S.) 148, Ann. Cas. 1914B, 130.

A careful definition of "kept or used" is found in the recent case of Springfield F. & M. Ins. Co. v. Wade, 95 Tex. 598, 68 S. W. 977, 58 L. R. A. 714, 93 Am. St. Rep. 870, where the words of prohibition were "kept, used, or allowed," and they were held not to cover a case where a gallon of gasoline was brought onto the premises for temporary use, although such act in fact caused the destruction of the property. "It is not enough," say the court, "that hazardous articles are upon the premises. They must be there for the purpose of being stored or kept * * * As the word 'kept' means that the prohibited article must not only be upon the premises, but must be there for keeping or storing, and not merely upon a temporary occasion for a different purpose, it follows that there must be some degree of permanency in its continuance there. The word implies all this. The word 'used' is employed in immediate connection with the word 'kept,' in order, we think, to extend the provision so as to exclude the idea that the article must be stored or deposited on the premises. But the purpose in the use of each word is to provide against the same danger, viz., that which would arise from the habitual, constant, or continued exposure of the property through the presence or use of the article. One word forbids the permanent or habitual keeping of the dangerous thing, and the other a like use of it, without the actual depositing or storing of it" See, also, Hynds v. Insurance Co., 11 N. X. 554, Farmers' Ins. Co. v. Simmons, 30 Pa. 299, Mears v. Insurance Co., 92 Pa. 15, 37 Am. Rep. 647, Szymkus v. Insurance Co., 114 Ill. App. 401, and Adair v. Insurance Co., 107 Ga. 297, 33 S. E. 78, 45 L. R. A. 204, 73 Am. St. Rep. 122, the last involving the temporary use of a machine for threshing grain on the premises where the insured property was located.

2. Increase of Risk.

The language is that the policy shall be void if, without the written consent of the insurer "the situation, or circumstances affecting the risk, shall, by or with the advice, agency or consent of the insured be so altered as to cause an increase of such risks." What constitutes an alteration of the situation or circumstances affecting the risk as to cause an increase of risk? Here we must distinguish between occasional...