Hinckley v. Germania Fire Ins. Co.

• Decision Date: 18 June 1885
• Citation: Hinckley v. Germania Fire Ins. Co., 140 Mass. 38, 1 N. E. 737 (Mass. 1885)
• Parties: HINCKLEY v. GERMANIA FIRE INS. CO.
• Court: Supreme Judicial Court of Massachusetts

140 Mass. 38

1 N.E. 737

HINCKLEY

v.GERMANIA FIRE INS. CO.

Supreme Judicial Court of Massachusetts.

Filed June 18, 1885.

This was an action of contract upon a policy of insurance against fire upon a pool table and other saloon fixtures. At the trial in the superior court a verdict was ordered for the defendant, and the case reported for the consideration of the supreme court.

J.M. & T.C. Day, for plaintiff.

M. & C.A. Williams, for defendant.

C. ALLEN, J.

The report does not state the grounds upon which the ruling rested, that the plaintiff was not entitled to recover. The defendants, in their brief, rely on various objections, which we have considered.

In the first place, the defendants suggest that there is certainly great doubt whether the license under which the plaintiff was doing business on the day when the policy was dated and delivered was of any validity, since this license ran to both brothers, Edwin and Herbert, though Herbert had ceased to have any interest in the place before the license was dated and issued. No authority is cited or reason assigned for so strict a construction, and we are of opinion that a license duly granted to two persons, under Pub.St. c. 102, § 111, to keep a billiard or pool table, or a bowling alley, for hire, is available to each of them. This is not like a case where two persons seek to avail themselves of a license granted to only one of them.

It is then urged that, after the license had expired, the plaintiff kept the insured property, in violation of law, from May 1, 1883, till the last week in June, 1883. The policy was dated March 15, 1883, and the license then existing expired May 1, 1883. The fire occurred on August 6, 1883, and it was conceded that there was no illegal use of the property after the last week of the preceding June, at which time the plaintiff ascertained that his license would not be renewed. The defendants rest their objection on two grounds: First, that the illegality and criminality of the plaintiff's act in respect to the injured property vitiates the policy by operation of law, independently of any express provisions contained in the policy; and, secondly, that under a provision of the policy the right to recover was taken away. The authorities cited in support of the first proposition do not support it. In Kelly v. Home Ins. Co. 97 Mass. 288, the policy was on intoxicating liquors, which at the time of the insurance, and thereafter to the time of the loss, were intended for sale in violation of law. The policy never attached. There was never a moment when the liquors were not illegally kept; and all that the case decides is that goods so kept at the time when the policy issued, or at the time of the loss, cannot be the subject of a valid insurance. In Johnson v. Union Ins. Co. 127 Mass. 555, the facts were similar. The policy was on billiard tables, balls, cues, etc., kept without a license at the time the policy was issued, as well as at the time of the loss. The ground of the decision in both of the above cases is stated to be “that the object of the assured in obtaining the policy was to make their illegal business safe and profitable; and that, the direct and immediate purpose of the contract of insurance being to protect and encourage an unlawful traffic, the contract was illegal and void, and the policy never attached.” The same facts existed in Lawrence v. National Ins. Co. 127 Mass. 557. In Cunard v. Hyde, 2 El. & El. 1, the cargo which was the subject of insurance was partly loaded on deck, in violation of law, and while in that condition was totally lost.

In the present case, the plaintiff had a license at the time when the policy issued, and the policy, therefore, was valid when obtained. If it be assumed without discussion that the policy would cease to be operative during the time when the property was kept in use without a license, the question remains whether such temporary illegal use of the property has the effect to avoid the policy altogether, or merely to suspend it during the continuance of such illegal use. There is nothing in the case to show that it was proved, as a matter of fact, that the plaintiff, at the time of taking out the policy, intended to make it cover any illegal use of the property. He may have expected to get his license renewed; or, failing in that, he may have intended to close the place where the property was used, as, according to his own testimony, in point of fact he did. Under this state of facts, we are of opinion that the temporary use of the property without a license, if uncontemplated at the time of taking out the policy, would not of itself, and as a matter of law, render the policy void during the whole of the rest of the time which it was to run. If there were any special or peculiar reasons why such absolute invalidity should be declared, they should be made to appear. In the absence of such reasons, such temporary and uncontemplated illegal use of the property should not be visited with so severe a penalty as the absolute avoidanceof the policy. It does not appear that the defendants were or would be in any way injuriously affected thereby after such illegal use had ceased. They have the benefit of the temporary suspension of the risk, without any rebate of the premium. There is no hardship to the defendants in requiring them to show an actual injury, or else to avail themselves of the clause in the policy giving them a right to cancel it upon notice, and a return of a ratable proportion of the premium. There is no rule of law preventing the revival of a policy of insurance after a temporary suspension. “The doctrine that the risk may be suspended, and again revive, without an express provision for the purpose, seems to be within the strictest judicial principles.” 1 Phil.Ins. § 975. Accordingly, temporary unseaworthiness, if the ship has become seaworthy again, will not defeat the policy. 1 Phil.Ins. § 730. So as to other stipulations; as, e.g.,...