Kyte v. Commercial Union Assur. Co.
| Decision Date | 09 May 1889 |
| Citation | 149 Mass. 116,21 N.E. 361 |
| Parties | KYTE v. COMMERCIAL UNION ASSURANCE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.Q. Tirrill, for plaintiff.
Powers & Powers, for defendant.
These policies were in the form of the Massachusetts Standard policy, and each provided that "this policy shall be void *** if without such assent [namely, 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 risks, *** or if gunpowder or other articles subject to legal restriction shall be kept in quantities or manner different from those allowed or prescribed by law." Various other circumstances were enumerated which would also avoid the policy. At the beginning of the trial the defendant waived every defense except increase of risk. The defense of the illegal keeping of intoxicating liquors, as a separate and distinct defense, was therefore waived.
We have to consider, in the first place, whether the instructions requested by the defendant were given in substance. The plaintiff contends that they were. The learned judge before whom the case was tried adopted, in substance, the third and fifth instructions asked for by the defendant, and thus instructed the jury that, if they shall find that during the time for which these policies were issued the plaintiff Kyte, by obtaining a common victualler's license, and making use of this building under said license, and legally or illegally selling intoxicating liquors therein, increased the risk, then this policy became void as to the plaintiff, Kyte, and he could not recover for his interest therein; and if they should find that while these policies were in force intoxicating liquors were kept and sold in this building by the plaintiff, Kyte, or with his consent or knowledge, and that thereby the risk was increased, this policy became void as to his interest, and he could not recover. This was a general and broad instruction, including the increase of risk by using the premises as a common victualling place, or as a place for selling intoxicating liquors legally or illegally, and well covered the general question of the effect of an increase of risk. From this instruction, taken alone, a jury might well have inferred that the policy would be void in case of any such increase of risk at any time during the term covered by the policies and before the fire.
But the defendant, in the fourth request for instructions, asked for a special instruction, adapted to the case of a temporary increase of risk which had ceased before the time of the fire; that is to say, that if the jury should find that by the illegal sale of intoxicating liquors in this building by the plaintiff, Kyte, or by others with his consent and knowledge, for a certain portion of the time for which these policies were issued, the risk was for that period increased this policy would be void as to Kyte's interest, and he could not recover, although this increase was not permanent. The judge declined to give this ruling, and instructed the jury, in substance, that if that illegal use was temporary, not contemplated at the time when the policy was taken by the plaintiff, and ceased before the fire, then the fact that he had made an illegal use...
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