Gunther v. Liverpool & L. & G. Ins Co.

• Decision Date: 17 March 1888
• Citation: 34 F. 501
• Parties: GUNTHER et al. v. LIVERPOOL & LONDON & GLOBE INS. CO.
• Court: U.S. District Court — Eastern District of New York

34 F. 501

GUNTHER et al. v. LIVERPOOL & LONDON & GLOBE INS. CO.

United States Circuit Court, E.D. New York.

March 17, 1888

At Law. On motion for new trial.

Action by Amelia A. Gunther, executrix, etc., and others against the Liverpool & London & Globe Insurance Company on a policy of insurance issued by such company.

INSURANCE-- CONDITIONS OF POLICY-- WHAT CONSTITUTES BREACH.

A policy of insurance containing a clause that kerosene shall not be stored on the premises insured, excepting to use for lights, if the same be drawn and the lamps filled by daylight, to which is attached two riders, bestowing the privilege of keeping not exceeding five barrels of such kerosene, and using it for lights on such premises, provided the lamps are trimmed and filled by daylight, is avoided by drawing kerosene by lamplight to loan to a neighbor, causing an explosion by which the entire building was burned.

C Bainbridge Smith, for plaintiffs.

William Allen Butler, for defendant.

LACOMBE J.

When the testimony in this case was closed, defendant moved for the direction of a verdict. The court was inclined to grant such motion on the ground that it appeared by uncontradicted evidence that the cause of the fire was the drawing of kerosene by lamplight. Inasmuch, however, as much testimony had been introduced bearing on another defense, viz., the presence or use of gasoline or benzine on the premises, the motion was denied, with leave to renew after verdict as a motion for direction of judgment. All question as to the drawing of kerosene by lamplight was withdrawn from the jury and upon plaintiffs' case, and the other defense, their verdict was for the plaintiffs. The defendant now moves for a new trial on the same ground as that urged when the case was closed; not making the motion reserved to it, for the reason that such motion is 'not in consonance with federal practice,' because a compulsory nonsuit is not permitted here, and its practical equivalent-- the power to direct a verdict-- does not exist after verdict rendered. Under the authorities it is no doubt true that the very same process by which a state judge nonsuits a plaintiff on the whole case on grounds of law, is called the 'directing a verdict,' when practiced by a federal judge. Oscanyan v. Arms Co., 103 U.S. 261. It would be matter of regret however, if the federal courts should be sticking in the bark of mere verbal dialectics be unable, despite section 914 Rev. St., to avail themselves of a state practice so simple, sensible, and efficient as that of directing judgment of nonsuit upon reserved points of law after verdict. Shepherd v. Bishop, 6 Bing. 435; Downing v. Mann, 3 E.D.Smith, 36; Insurance Co. v. Minard, 2 N.Y. 98; Shellington v. Howland, 53 N.Y. 371. By the refusal of the court, however, to charge his last five requests, and by the denial of his motion to direct a verdict in his favor, counsel for the defendant is entitled to apply for the relief he now asks.

Neither the plaintiffs' extended argument, nor a careful examination of the authorities cited in this brief, has altered the opinion expressed on the trial. The circumstances under which the fire originated were these: On August 15, 1879, two servants belonging to the Bath Park Hotel, situated about a mile distant, came to Walker, the proprietor and occupant of the insured premises, to borrow some kerosene oil. (There was considerable conflict of testimony as to whether it was kerosene or gasoline which they came to get; but the jury has found that there was no gasoline on the premises, and this motion will therefore be determined upon the assumption that the oil on the insured premises was kerosene.) Their request was acceded to, and they were referred by Walker to one of his employes, who was directed to supply their need. With two common open wooden pails, which they had brought to carry the oil in, and accompanied by Schuchart, Walker's employe, carrying a lighted lantern, the Bath Park employes went to the 'oil-room.' In this room, which was generally under Schuchart's charge, there was a barrel of kerosene, a can, some old rubbish, and a stand on which lamps could be filled. It was under what was known as the 'pavilion,' its floor a foot or so below the level of the ground, apparently without a window, and entered by a narrow door. Schuchart first set his light-- an ordinary stable lantern, with holes in the top-- upon the door-sill, and began to draw into the pails. The first of these leaked; considerable oil was spilled, and its contents were then poured into the second pail. About this time the lamp was brought from the door-sill nearer to the barrel, and shortly afterwards-- only a few minutes after the party entered the oil-room-- there ensued an explosion and conflagration by which the premises were totally destroyed. There was some conflict as to the precise time of explosion, but all the testimony showed that it was about dusk, darker in the oil-room than it was outside, and there is no dispute but that the oil was not being drawn by daylight only.

Is a loss so caused covered by the policy? It is undoubtedly true that written clauses and riders will prevail over the ordinary printed forms of insurance contracts, and that, as the...