First Congregational Church of Rockland v. Holyoke Mut. Fire Ins. Co.

• Decision Date: 17 March 1893
• Citation: 33 N.E. 572,158 Mass. 475
• Parties: FIRST CONGREGATIONAL CHURCH OF ROCKLAND v. HOLYOKE MUT. FIRE INS. CO. SAME v. SPRINGFIELD FIRE & MARINE INS. CO. SAME v. SUN FIRE OFFICE CO. SAME v. QUINCY MUT. FIRE INS. CO. SAME v. FITCHBURG MUT. FIRE INS. CO. SAME v. NORTH BRITISH & MERCANTILE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 475

33 N.E. 572

FIRST CONGREGATIONAL CHURCH OF ROCKLAND

v.HOLYOKE MUT. FIRE INS. CO.

SAME

v.SPRINGFIELD FIRE & MARINE INS. CO.

SAME

v.SUN FIRE OFFICE CO.

SAME

v.QUINCY MUT. FIRE INS. CO.

SAME

v.FITCHBURG MUT. FIRE INS. CO.

SAME

v.NORTH BRITISH & MERCANTILE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 17, 1893.

Report from superior court, Suffolk county; John Hopkins, Judge.

Actions by the First Congregational Church of Rockland against the Holyoke Mutual Fire Insurance Company, and five other companies, on fire insurance policies. There was a general verdict for plaintiff directed by the court on special verdicts returned by the jury, and the cases were reported. Verdicts set aside.

Gaston & Whitney, for plaintiff.

Allen, Long & Hemenway, for defendants Holyoke Mut. Fire Ins. Co. and other companies.

KNOWLTON, J.

The policies of insurance sued on in these six cases are all alike in containing provisions which are relied on in defense, and which are as follows: “This policy shall be void if, *** without the assent in writing or in print of the company, *** the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured, be so altered as to cause an increase of such risk; *** or if camphene, benzine, naphtha, or other chemical oils or burning fluids shall be kept or used by the insured on the premises insured, except that what is known as refined petroleum, kerosene, or coal oil may be used for lighting,” etc. The property insured was a church edifice built of wood, not clapboarded, but sheathed horizontally with grooved and tongued sheathing, closely matched together, and painted and sanded on the outside. The paint had peeled and curled, and at the time of the fire the plaintiff was repainting the building. Three trustees had “the control and care of all the real estate belonging to the church,” and were authorized to provide for its insurance and repairs. They arranged with one Gilson, a painter, to paint the outside of the building by the day at the rate of $3 per day for himself, and $2.75 per day for his men, the trustees furnishing the paint stock, and he furnishing his own brushes, ladders, and other tools of trade. It was also arranged that he was to burn off the old paint with a torch or some such implement, preparatory to repainting. He procured for the purpose a naphtha torch so made as to hold a quart or more of naphtha, with a handle at one side of the receptacle, and a tube extending out on the opposite side, through which a flame could be emitted, produced by the gas from the naphtha and compressed air. It could be made to send this flame out in a straight line about two feet, and when in use it made a noise “similar to a steam engine.” The flame could be regulated by a thumb screw so as to extend not more than six or eight inches beyond the end of the tube, and the torch was used by holding it in the left hand, and passing it along, so that the flame from the tube would blister or burn the paint, which could then easily be scraped off. The evidence tended to show that the trustees knew that Gilson was to burn off the paint, and left it to him to determine exactly in what way he would do it. One or more of them saw the torch which was used before he began to use it, and they repeatedly saw him using it before the fire. When the work had been going on about four weeks, the torch, according to the testimony, having been used daily during all the working days, the building caught fire on the edge of a board where there was a crack and where the torch had just been used, and was entirely consumed. This was on the 16th day of July, 1890, and there was evidence that the weather was hot, and the boards very dry. There was also evidence that, as a protection against fire, a pail of water was kept on hand while the work was going on. The evidence tended strongly to show that the danger of a conflagration was greatly increased by the use of the naphtha torch on the dry, inflammable, soft pine boards, with their shrunken joints. If the risk was increased by the use of the torch, it seems, on the undisputed facts, that it was by the agency and with the knowledge and consent of the insured, for the officers represented the plaintiff in the management of the property, and saw the torch in use, and they authorized the use of it before the work was begun. Bank v. Cushman, 12 Mass. 490. Gilson was their agent, acting in the exercise of his discretion and with full authority in procuring and using the naphtha, and on the uncontradicted evidence the use of naphtha by him was a use of it by the insured, within the meaning of the provision quoted from the policies. Was a change of this kind increasing the risk, with the knowledge, agency, and consent of the insured, an alteration of “the situation or circumstances affecting the risk,” within the meaning of those words in the policies? These words imply something of duration, and a casual change of a temporary character would not ordinarily render the policy void under this provision. But this change had existed continuously during the working hours of every day for nearly a month, and the work was not nearly done when it was interrupted by the fire. We are of opinion that the change of the condition was sufficiently long continued to be deemed a change in “the situation or circumstances affecting the risk.” In the case of Lyman v. Insurance Co., 4 Allen, 329, it was held that an alteration of a building which increased the risk for three weeks was enough to render the policy void under a similar clause.

We find no evidence that naphtha was kept on the premises. The word “kept,” as used in the policy, implies a use of the premises as a place of deposit for the prohibited articles for a considerable period of time. See Williams v. Insurance Co., 31 Me. 219; O'Niel v. Insurance Co., 3 N.Y. 122;Williams v. Insurance Co., 54 N.Y. 569; Mears v....