Kern v. South St. Louis Mut. Ins. Co.

• Decision Date: 31 March 1867
• Parties: JACOB KERN, Respondent, v. THE SOUTH ST. LOUIS MUTUAL INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

40 Mo. 19

JACOB KERN, Respondent,

v.THE SOUTH ST. LOUIS MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

The plaintiff took out a policy in this case and became a member of the defendant's company on the 28th of November, 1862. The insurance effected was to the amount of five thousand dollars--twenty-five hundred on the two-story brick building, and the same sum on stock in wagonmaker's and blacksmith's shop therein, situated on the northwest corner of Third and Lombard streets in St. Louis. The property was burnt January 8, 1864. Due notice was given to defendant and proof of loss made.

The defendant set up in answer to the petition, that after the insurance, and without the knowledge or consent of defendant, the plaintiff erected a wooden building or shed next to and adjoining the brick building, and set up a steam boiler in it, and put the engine and gearing in the brick building, and ran the steam pipe through the wall, and had or made openings connecting the boiler room with the engine inside the building, and erected a chimney stack for the furnace close to and adjoining the building insured; that the erection of the engine and boiler and the connection of them in that way increased the risk and hazard of fire, thereby forfeiting the policy, and that the changes thus made were such an alteration in the building as avoided the policy. There was also erected by plaintiff, after the insurance and without notice, a new brick building adjoining the one insured and connected with it, in which was stored material for making wagons.

The plaintiff put in evidence the policy, the charter and by-laws of defendant, and made proof of loss and notice. The policy refers to the act of incorporation of the company, dated March 10, 1859; it was for six years, and made the conditions of insurance, the act of incorporation, and the by-laws, a part of the policy.

The policy provided: “It is agreed by the assured, that, in case there shall be any building erected immediately adjacent or adjoining the above described building, which shall materially increase the risk or hazard of fire, notice shall be given the company immediately, that an examination can be made by the agent or agents of the company, and the rate of insurance increased, or the policy cancelled, at the option of either party.”

The conditions of insurance provided: “If during the insurance the risk is increased by the erection of buildings, or by the use or occupation of neighboring premises or otherwise, or if for any other cause the directors shall elect, it shall be optional with them to terminate the insurance after notice is given to the insured or representative, of their intention so to do.”

Another condition was: “It is further agreed, that no change of the building or buildings herein insured, or in which property is insured by this company, shall be made by repairs, additions, or otherwise, without the consent or approval of the president of the company, in writing, before making such change. Any breach or violation of this provision shall render this policy of no effect during such change, and until such change shall be approved by the president or directors.”

It appeared in evidence that the engine had been run for the purpose of trial, and to get it in working order, before the fire, but the fire under the boiler had been put out a day or two before the fire. The fire occurred early in the morning, and was first seen in the building insured and in the yard adjoining. That about six weeks before the fire the wooden shed was erected, about twenty feet long and eight or ten feet high, adjoining on the insured buildings, and under this the boiler and furnace were put, and the engine set up inside the insured building, the steam pipes running through the wall; a gang of two saws was also under the shed, run by the engine. There was a door in the north wall of the insured building opening into the shed.

The defendant called John C. Vogel (who testified that he had been an officer of an insurance company in St. Louis for twelve years, and was familiar with insurance in mutual insurance companies and the rates of insurance) and asked him--1. “That whether in your opinion the erection of the boiler and the location of the engines in the old building and the erection of the wooden shed over the boiler, created an additional hazard and required an additional premium to insure the old building?” This question was objected to by plaintiff and excluded by the court, and the exclusion excepted to. The question was asked simply as to whether such change would require a higher rate of premium, and that question was excluded. Also the question as to whether or not such change, in his opinion, increased the risk; and that was excluded and excepted to.

The court gave the following instructions for respondent:

1. The jury are instructed that no alteration or repairs made on premises insured by plaintiff would avoid his policy, nor can his recovery be defeated by means of alterations or repairs, unless the same were such as to increase the risk or hazard from fire to the insured premises. If the jury find from the evidence that defendant made the policy sued on, and the property insured was destroyed by fire as stated in the petition, and plaintiff complied with the agreements and conditions in the policy to be complied with on his part, they will find for the plaintiff.

2. The jury are instructed that the policy sued on could not be made void, nor can the recovery of plaintiff be defeated by the erection of any building immediately adjacent or adjoining premises insured, unless such erections materially increase the risk or hazard of fire.

To the giving of each of said instructions appellant excepted.

Of the following instructions for appellant, the court gave the first, and refused the second and third:

1. If any alteration in the building insured was made by plaintiff, or under his direction, or with his knowledge or consent, after insurance made with defendant, whereby said building was exposed to greater risk or hazard from fire than when insured, the policy became void, unless plaintiff has proved to the satisfaction of the jury that an additional premium and deposit, after such alteration, was settled with and paid to defendant or agent before the fire happened.

2. If the jury find from the evidence that plaintiff, after obtaining the policy sued on, caused a wooden shed to be erected adjoining insured building, and an engine to be put up in it to be propelled by steam from said boiler, and said boiler was heated by a furnace under it, and said engine was connected by a steam pipe with said boiler, also by bands with machinery for propelling two saws on the outside of the insured building, and that a new brick building was erected adjoining the insured building,--then the jury are instructed that such erections, machinery and connections are an alteration of the insured building within the meaning of the 24th section of charter of defendant.

3. It is wholly immaterial in this case how or from what cause the fire happened that consumed the premises insured; and if the jury find from the evidence that any alteration was made in the building insured by plaintiff, or his workmen or agents, under his direction, or with his knowledge or consent, after the insurance made thereon with defendant, whereby said building was exposed to greater risk or hazard from fire than it was when insured, then the policy sued on became void and of no effect, and the jury will find a verdict for defendant, unless the plaintiff has proved to the satisfaction of the jury that an additional premium and deposit, after such alteration, was settled with and paid to the defendant.

Hill & Jewett, for a...