Cassimus v. Scottish Union & National Ins. Co.

• Decision Date: 16 December 1902
• Citation: 33 So. 163,135 Ala. 256
• Parties: CASSIMUS v. SCOTTISH UNION & NATIONAL INS. CO.
• Court: Alabama Supreme Court

33 So. 163

135 Ala. 256

CASSIMUS v. SCOTTISH UNION & NATIONAL INS. CO.

Supreme Court of Alabama

December 16, 1902

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action by S. M. Cassimus, doing business as Cassimus Bros., against the Scottish Union & National Insurance Company on an insurance policy. From a judgment in favor of defendant plaintiff appeals. Reversed.

The defendant pleaded the general issue and the following special pleas: "(2) That in and by the policy of insurance sued on, it is expressly stipulated, understood, and agreed that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, should be void if the hazard was increased by any means within the control or knowledge of the insured; and this defendant avers that the hazard was increased by means within the knowledge and control of the assured, in that plaintiff carried to and kept within the building covered by the said policy of insurance a large amount of easily ignitible, inflammable substance, to wit, ten gallons of gasoline, or other large amount thereof and there was no agreement indorsed on or added to said policy in reference thereto or consenting thereto. (3) That in and by said policy of insurance it was expressly stipulated, undertaken, understood, and agreed that the said policy, unless otherwise provided by an agreement indorsed thereon or added thereto, should be void if (any usage or custom of trade or manufacture to the contrary notwithstanding) there should be kept, used, or allowed on the premises covered by said policy any gasoline, and this defendant avers that there was kept, used, and allowed on said premises, and there was present there at the time of the said fire which destroyed the same, a large amount of gasoline, to wit, ten gallons thereof, and that it was never provided by agreement indorsed on or added to said policy that the same, or any part of the same, should be kept, used or allowed on said premises, nor the same so consented to."

The plaintiff demurred to the second plea upon the following grounds: "(1) It is not stated in and by said plea how or in what manner the hazard was increased. (2) It is not stated in and by said plea that the carrying and keeping within the building of a large amount of easily ignitible and inflammable substance, to wit, ten gallons of gasoline, or other large amount, increased the hazard, within the control or knowledge of the assured. (3) It is not alleged in said plea that the plaintiff knew of the carrying and keeping of the gasoline increased the hazard. (4) It it not alleged that the carrying and keeping of the gasoline was within the control and knowledge of the assured. (5) It is not alleged in said plea that the defendant did not consent to the carrying or keeping of the gasoline within the building covered by the policy of insurance." The plaintiff also demurred to the third plea upon the following ground "(1) It is not averred in and by said plea that the keeping, using, and allowing of gasoline on the premises was with the knowledge or consent of plaintiff." These demurrers were overruled. Thereupon plaintiff filed the following replications to pleas 2 and 3: "(1) That subsequent to the issuance of the policy sued on in this case, on, to wit, the 11th day of December, 1899, the property insured by said policy was damaged and destroyed by fire; that thereafter, on, to wit, January 3, 1900, plaintiff delivered to defendant proof of loss under said policy, in accordance with the terms of said policy; that in reply thereto the agent of defendant notified plaintiff by letter of the receipt of said proof of loss, but denied any liability under said policy, stating as the reason for nonliability that plaintiff had broken the condition of the policy as specified in line 25 thereof, because of the use and storage of gasoline on the premises without a permit; and plaintiff further avers that the ground set forth in plea No 2 as to increased hazard is not set forth in line 25 of said policy, but in lines 14 and 15 of said policy. (2) Further answering said plea, this plaintiff says that at the time of the issuance of said policy one John F. Gay was the agent of the defendant who procured from plaintiff the application for said policy, and who himself issued said policy; that when said policy was issued and written out there was attached to it, and formed a part thereof, a form as follows: 'Attached to and forming part of policy 2,476,624 of Scottish Union & National Insurance Company. $1,500.00 on stock of merchandise, consisting principally of confectioneries, liquors, cigars, tobacco, toys, and such other merchandise usually kept in similar stocks, while contained in the three story and cellar, brick, metalroof building situated at No. 104 Dexter avenue, Montgomery, Ala. Sheet No. 10, block 53.' And plaintiff avers that at said time he called the attention of said John F. Gay to the fact, and asked him if the keeping of gasoline was covered by the expression 'usually carried in similar stocks,' and the said John F. Gay replied that it was. (3) That attached to and forming a part of the policy sued upon is the following: 'Attached to and forming a part of policy 2,476,624 of Scottish Union & National Insurance Company. $1,500.00 on stock of merchandise, consisting principally of confectioneries, liquors, cigars, tobacco, toys, and such other merchandise usually kept in similar stocks, while contained in the three-story and cellar, brick, metalroof building situated at No. 104 Dexter avenue, Montgomery, Ala. Sheet 10, block 53.' That the portion of said form above set forth which is in words and figures as follows, 'Confectioneries, liquors, cigars, tobacco, toys, and such other merchandise usually kept in similar stocks,' is in writing, and not a part of the printed form, and that gasoline is usually kept with the class of goods detailed in said form attached to and forming a part of said policy. (4) That at the time of the issuance of the policy sued upon, one John F. Gay was the agent of the defendant who procured the application for said policy, and who himself issued it; that subsequently thereto, and prior to the damage and destruction of the goods, the said John F. Gay, who was at that time the agent of said defendant, as stated above, was informed by plaintiff that he kept and used gasoline in his place of business, which was where the stock of goods insured by said policy was. (5) Further answering each of said pleas, this plaintiff says that at the time of the issuance of said policy sued upon, which is herewith attached, and made a part of this plea, as Exhibit A, one John F. Gay was the agent of the defendant in procuring from plaintiff the application for said policy, and who himself issued said policy, and that at the time of the issuance of said policy this plaintiff called the attention of said John F. Gay to the expression in said policy, which is in writing, 'usually carried in similar stocks,' and notified the said John F. Gay at said time that he was keeping and intended to keep gasoline in his stock, whereupon the said John F. Gay replied to plaintiff that it was all right, and that he had the right to do so under the policy, wherefore plaintiff says that defendant is estopped from now pleading the forfeiture as set up in said plea. (6) Further answering each of said pleas, this plaintiff says that at the time of the issuance of said policy sued upon, which is herewith attached and made a part of this plea, one John F. Gay was the agent of the defendant in procuring from plaintiff the application for said policy, and who himself issued said policy, and that at the time of the issuance of said policy this plaintiff called the attention of said John F. Gay to the expression in said policy, which is in writing, 'usually carried in similar stocks,' and notified the said John F. Gay at said time that he was keeping and intended to keep gasoline in his stock, whereupon said John F. Gay replied to plaintiff that it was all right, and that he had the right to do so under the policy, wherefore plaintiff says defendant has waived its right to set up said forfeiture set forth in its pleas. (7) Further answering said pleas, this plaintiff says that in said policy sued upon the following portion thereof, 'confectioneries, liquors, cigars, tobacco, toys, and such other merchandise usually kept in similar stocks,' is in writing, placed in said policy by John F. Gay, who was the agent of the defendant at the time of the issuance of said policy, and who solicited the same, and himself issued it, and that the conditions of said policy set forth in said plea No. 2 and plea No. 3 as to increased hazard and the keeping of gasoline, respectively, were both in the printed portion of said policy, and not in writing; and plaintiff further avers that gasoline is merchandise usually kept in similar stocks to that covered and insured by the policy sued upon, wherefore this plaintiff says defendant is estopped from setting up said conditions as a forfeiture. (8) Further answering said pleas, this plaintiff says that in said policy sued upon the following portion thereof, 'confectioneries, liquors, cigars, tobacco, toys, and such other merchandise usually kept in similar stocks,' is in writing, placed in said policy by John F. Gay, who was the agent of the defendant at the time of the issuance of the policy, and who solicited the same, and himself issued it, and that the conditions of said policy set forth in said plea No. 2 and plea No. 3 as to increased hazard and the keeping of gasoline, respectively, were both in the printed portion of said policy, and not in writing; and plaintiff further avers that gasoline is merchandise usually kept...