Leonard v. Northwestern Nat. Ins. Co. of Milwaukee, Wis.

• Decision Date: 04 June 1923
• Docket Number: 3919.
• Parties: LEONARD v. NORTHWESTERN NAT. INS. CO. OF MILWAUKEE, WIS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

290 F. 318

LEONARD v. NORTHWESTERN NAT. INS. CO. OF MILWAUKEE, WIS.

No. 3919.

United States Court of Appeals, District of Columbia.

June 4, 1923

Submitted May 2, 1923.

Appeal from the Supreme Court of the District of Columbia.

Francis P. Sheehy and Vincent A. Sheehy, both of Washington, D.C for appellant.

Myer Cohen, F. J. Hogan, and E. L. Jones, all of Washington, D.C for appellee.

Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

Appellant brought an action in assumpsit in the Supreme Court of the District of Columbia against appellee insurance company to recover on a policy of fire insurance.

It appears that the plaintiff was the owner of premises located in this District, on which was situated a two-story brick stable building. On March 17, 1917, the defendant company issued to the plaintiff a policy of insurance on the stable against loss or damage by fire. The term of the policy was for three years, and the building was described therein as a 'two-story brick stable (private business).' At the time of the issuance of the policy the building was occupied by an undertaker, who used it as a stable in which he kept a number of horses and carriages in connection with his private business. About two months after the policy was issued plaintiff rented the stable to the Larimer Bag Company, who used the building for the storing of burlap bags and for the baling and storing of excelsior. The baling process was accomplished by the use of a hay baler operated by a gasoline engine. The gasoline was stored in the base of the engine. At no time after its occupancy by the bag company were any horses or carriages kept in the building.

After the damage by fire, plaintiff notified defendant company of his loss, and demanded reimbursement under the policy of insurance. Defendant, on investigation, discovered the use to which the building had been put, and denied any liability under the policy. At the conclusion of the evidence, the court directed the jury to return a verdict in favor of defendant company, and from the judgment thereon this appeal was taken.

It is unnecessary to review the evidence, since the case can be disposed of on a single proposition of law. The policy of insurance, among other things, provided that it should be void--

'in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after a loss, * * * or if the hazard be increased by any means within the control or knowledge of the insured, * * * or if any change, other than by death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured or otherwise, or if * * * there be kept, used, or allowed on the above-described premises benzine, benzole, dynamite, ether fireworks, gasoline, greek fire, gunpowder exceeding 25 pounds in quantity, naptha, nitroglycerin, or other explosives, phosphorus, or petroleum, or any of its products of greater inflammability than kerosene oil.'

The record fails to disclose any effort on the part of the plaintiff to comply with the above provisions of the policy. Immediately following the fire he directed a letter to the company in part as follows:

'The property was rented under contract dated June 20, 1917, to the Larimer Bag Company, to be used as a stable. I understand, however, that the tenant used the place for the storage of his car, and recently has been using it for the purpose of baling excelsior. He made these changes in the use of the premises

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