Franklin Fire Ins. Co. v. Gruver

• Decision Date: 01 May 1882
• Citation: 100 Pa. 266
• Parties: Franklin Fire Insurance Co. <I>versus</I> Gruver.
• Court: Pennsylvania Supreme Court

100 Pa. 266

Franklin Fire Insurance Co. versus Gruver.

Supreme Court of Pennsylvania.

April 10, 1882.

May 1, 1882.

April 10th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDNN, PAXSON, TRUNKEY, and GREEN, JJ. STERRETT, J., absent

ERROR to the Court of Common Pleas of Luzerne county: Of January Term 1881, No. 165.

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Palmer (with him Dewitt, Fuller and Derr), for the plaintiff in error.—The court erred in not confining the evidence and the charge to the only material question in the case, to wit: the effect on the risk of the erection of the adjacent buildings, with the knowledge of the assured and without notice to the company. The court admitted evidence of, and commented upon several immaterial considerations, viz., that the new buildings were not erected by the insured; that the new buildings did not occasion the loss; and that an agent of the company knew of their erection. The testimony of experts as to the increase of risk should have been admitted: Mitchell v. Ins. Co., 32 Iowa 421; Lapham v. Ins. Co., 24 Pick. 1; Kern v. Ins. Co., 40 Mo. 19; Schenck v. Mercer Co. Ins. Co., 4 Zab. 447. The court did admit the testimony of insurance men that a higher rate of premium would be charged because of the erection of new buildings; and there is no difference in principle between that evidence and the offered evidence, which was excluded.

The essential fact of increased risk was clearly proved by uncontradicted testimony, and it was therefore the duty of the court, to give binding instructions in the defendant's favor, as requested in our points: Hoag v. R. R. Co., 4 W. N. C. 561; Raby v. Cell, Id. 564; Pauli v. Commonwealth, 7 Id. 399; Pa. R. R. Co. v. Weis, 6 Id. 258; Lycoming Fire Ins. Co. v. Schwenk, 10 Ins. Law Jour. 13; Ins. Co. v. Kunkle, 6 W. N. C. 234.

Alexander Farnham (Hakes and L. H. Bennett with him), for defendants in error.—That testimony of experts on ordinary matters upon which every one is equally capable of forming an opinion is inadmissible is well settled, and this principle has repeatedly been applied in insurance cases where the defence was increase of risk: 1 Whart. Ev. § 436; Mulry v. Ins. Co., 5 Gray 541; Lyman v. Ins. Co., 14 Allen 329; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Luce v. Ins. Co., 105 Mass. 298; Wood on Ins. 854-860. The question whether the risk was materially increased by the erection of the new buildings, was properly submitted to the jury as one of fact: Wood on Ins. 438-443; Girard Ins. Co. v. Stephenson, 37 Pa. St. 293; Ins. Co. v. Arthur, 30 Id. 315; Curry v. Ins. Co., 10 Pick. 535; Gamwell v. Ins. Co., 12 Cush. 167; Rice v. Tower, 1 Gray 426; Williams v. Ins. Co., 57 N. Y. 274.

Mr. Justice GORDON delivered the opinion of the court May 1st 1882.

We cannot sustain the complaint made against the admission of the Mench lease. Mench had erected, on ground leased from the plaintiff, one of the houses which was said to have increased the risk to the insured premises, and it was altogether proper to show that that lease antedated the policy, for this tended to prove that Gruver in no way, even by implication, assented to the objectionable erections.

It is true, as the case now presents itself to us, this evidence was of very little moment, but as it was tried in the court below, we think, with the learned judge, it had some bearing in the way of showing that the plaintiff's property was not rendered more hazardous by any act of his own.

The determination of the greater danger from fire to the assured premises, in consequence of the proximity of the new buildings, was properly referred to the jury, they being at the same time instructed that if the danger was thus increased, in default of notice thereof to the company according to the condition in the policy, the plaintiff ought not to recover. Of this submission and instruction the defendant has no right to complain, for it thus had, at the hands of the court, all it was entitled to . . . At best the question of additional hazard was one of fact purely, and of right could not be withdrawn from the jury.

Williams v. The Insurance Co., 57 N. Y. 274, was a case upon a policy containing a condition somewhat similar to that under consideration, and the inquiry was whether the keeping of a small quantity of crude petroleum, in the insured premises, so increased the risk as to require notice to the company in order to prevent forfeiture: — Held, whether the amount of petroleum so kept was large or small, the question of the increase of risk resulting therefrom, was for the jury, and could not properly be determined by the court. So here; whether the new buildings were near to or far from the assured property, the question, nevertheless, whether an additional hazard was thereby created, was one exclusively for the jury.

We may here, in this connection, add, that error is unjustly charged upon the court on account of its addition of the adjective "material" to the word "risk"; this qualification not being found in the condition. But as in the defendant's third and sixth points the word "risk" was so qualified, fault should not be found...