Liverpool London Globe Ins Co v. Gunther, Ex

• Decision Date: 25 December 1885
• Citation: 6 S.Ct. 306,116 U.S. 113,29 L.Ed. 575
• Parties: LIVERPOOL & LONDON & GLOBE INS. CO. v. GUNTHER, EX'X, and another, Ex'r, etc. Filed
• Court: U.S. Supreme Court

6 S.Ct. 306

116 U.S. 113

29 L.Ed. 575

LIVERPOOL & LONDON & GLOBE INS. CO. v. GUNTHER, EX'X, and another, Ex'r, etc.

Filed December 25, 1885.

This is an action at law brought by Charles Godfrey Gunther, a citizen of New York, in the supreme court of that state, against the plaintiff in error, a corporation created by the laws of Great Britain, and consequently an alien, and by the latter removed into the circuit court of the United States for the Southern district of New York. There was a verdict and judgment for the plaintiff below, brought here for review by this writ of error. The object of the action was to recover the amount claimed to be due on two policies of fire insurance, issued by the defendant below, in favor of the plaintiff: one for $20,000 on the two-story hotel, frame building, with one-story frame kitchen and two-story frame pavilion building adjoining and communicating, situate in Gravesend bay, of Bath, Kings county, Long Island, $1,000 on the two-story frame stable occupied in part as a dwelling, and $200 on frame bathing-houses; and the other for $8,500 on the contents of the buildings insured. The loss by fire is alleged to have occurred on August 15, 1879, while both policies were in force. The execution of the policies, and the fact of the destruction by fire of the insured premises, were admitted by the answer, which, however, denied generally all the allegations of the complaint not expressly admitted, or otherwise controverted in the answer, and, in addition, set out the following special defense:

'Tenth. For a separate and distinct defense to the causes of action alleged in the complaint, in addition to the matters and things hereinbefore set forth, the defendant avers that it was provided in and by the terms and conditions of said policies of insurance, among other things, as follows: 'If the assured shall keep gunpowder, fire-works, nitro-glycerine, phosphorus, saltpeter, nitrate of soda, petroleum, naphtha, gasoline, benzine, benzole, or benzine varnish, or keep or use camphene, spirit gas, or any burning fluid or chemical oils, without written permission in this policy, then and in every such case this policy shall be void.' And, further: 'That petroleum, rock-earth, coal, kerosene, or carbon oils of any description, whether crude of refined; benzine, benzole, naphtha, camphene, spirit gas, burning fluid, turpentine, gasoline, phosgene; or any other inflammable liquid, are not to be stored, used, kept, or allowed on the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, excepting the use of refined coal, Kerosene, or other carbon oil for lights, if the same is drawn and the lamps filled by daylight. Otherwise this policy shall be null and void.' And the defendant avers that the said conditions of insurance were broken and violated on the part of the plaintiff, among other things, in that, without written permission of the defendants indorsed on said policies or otherwise, there were stored, used, kept, and allowed on the insured premises mentioned and described in said policies, benzine or other inflammable burning fluids or liquids, prohibited by said policies; and defendant avers that the fire mentioned and referred to in the complaint originated and was caused by such storing, using, keeping, and allowance of such prohibited articles on said insured premises; and defendant avers that it is advised and believes that, by reason of the premises, the said policies became and were null and void.'

Each of the two policies, after the description of the premises insured, contained the following clause: 'Privilege to use gasoline gas; gasometer, blower, and generator being under-ground about 60 feet from main building, in vault; no heat employed in process.' Among the conditions in the body of the policies is also the following: 'Petroleum, rock-earth, coal, kerosene, or carbon oils of any description, whether crude or refined; benzine, benzole, naphtha, camphene, spirit gas, burning fluid, turpentine, gasoline, phosgene; or any other inflammable liquid,—are not to be stored, used, kept, or allowed on the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, excepting the use of refined coal, kerosene, or other carbon oil for lights, if the same is drawn and the lamps filled by daylight. Otherwise this policy shall be null and void.' To the first policy there was attached the following: 'Privileged to use kerosene oil for lights, lamps to be filled and trimmed by daylight only.' And also the following: 'Privileged to keep not exceeding 5 barrels of kerosene oil on said premises.' To the second policy the first only of the foregoing privileges was attached.

On the trial the plaintiff, having produced the policies sued on, with the renewal receipts, showing that they were in force at the time of the loss, was called as a witness, and testified, among other things, as follows: 'I was the owner of the insured property at the time of the insurance, and have continued such until the present time. A fire occurred on the fifteenth of August, 1879, about dusk, by which the building and its contents were totally destroyed. I was seated on the piazza of the building proper in sight of the pavilion. I saw some parties with pails and a light. There were some children playing. Mr. Lanier Walker was playing with some boys around some small trees that I had planted in the lot, and my attention was attracted by hallooing, and I saw the men come out as though they were on fire. It did not occur to me then that there was any fire in the oil-room, although I saw it. I saws these men, and ran out and said, 'Roll in the grass.' One man struck for the water and the other one had the fire threshed out by the crowd. In another instant I saw the oil-room burning. The wind was from the south-west, blowing very hard right over the kitchen. The pavilion immediately caught, and in one hour's time or less the building was level with the ground.' The proofs of loss were read in evidence and the amount of the loss proven. The plaintiff also testified that during the summer of 1879 he had a room at the hotel, where he stayed on an average of four nights out of the week. The rest of the time he was in New York. Mrs. Fannie Walker kept the hotel as his tenant; her husband, Mr. John Walker, being manager for her.

The plaintiff having rested his case the defendant introduced evidence, not objected to, tending to prove the following facts: A gas-making apparatus for the use of gasoline, including a gasometer, generator, and blower, about 60 feet from the house, and all under-ground but the roof, had been in use for lighting the main building for about 11 years, up to and including the summer of 1878, but its use was discontinued in the fall of 1878, and it was not in use at all during the year 1879. There was an oil-room in the basement of the hotel under the pavilion, about 10 by 12 feet, with low ceiling. In this room the lighting material was kept. The fire originated in the oil-room, 'about dusk, August 15, 1879.' Three persons were in the room at the time: Jacob Constine, James Marrion, and one Schuchardt. The lastnamed was in Walker's employ as night watchman, and had charge of the oil-room. The others were employed at premises about a mile distant from the Locust Grove Hotel, called the Bath Park Hotel, where gasoline was used for lighting the last-named hotel and an adjoining pavilion. Constine and Marrion were sent by the book-keeper of the Bath Park House to the Locust Grove Hotel to borrow five gallons of gasoline, and each of them carried a wooden pail in which to fetch it. On reaching Locust Grove they saw Walker, who directed Schuchardt to give them the gasoline. Schuchardt took them into the oil-room. He carried a glass lantern with a wire frame around it, 'a regular closed stable lamp, with wire, and then little holes on top.' The lamp was lighted. Schuchardt placed the lantern on the floor, and drew fluid from a barrel which was raised on stanchions a little above the floor. He drew from the end of the barrel, into which a piece of gas-pipe had been placed as a faucet. On pouring into the pails it was found that one of them leaked, and Schuchardt got a five-gallon can into which to pour the oil; and while filling the can, there was 'a sort of bluish flame, and explosion, and the place was full of fire.' The fire spread with great rapidity. Schuchardt was burned to death. Constine was badly burned, and was laid up 13 weeks. Marrion was burned a little—not much. The hotel and all the buildings were destroyed by the fire. 'In one hour's time or less the building was level with the ground.' There was no conflict of evidence as to the origin of the fire.

Walker purchased in New York, and had shipped to the hotel, on August 13th, a barrel of kerosene, and a half barrel of benzine containing about 21 gallons, which were received and put into the oil-room under the pavilion on the morning of August 14th, the day before the fire. There was evidence tending to show that gasoline, benzine, or naphtha was used in torches for the purpose of lighting the pavilion; and also other evidence that it was intended for use in lighting grounds for a picnic. The plaintiff introduced evidence in rebuttal, tending to prove that no gasoline or benzine had been brought to the premises or was kept there. The testimony having been closed on both sides, the defendant's counsel then requested the court to direct the jury to find a verdict for the defendant on the ground that it appeared from the undisputed evidence that there was a violation of the condition of the policy providing that, in the use of refined kerosene oil, the same must be drawn by daylight; the evidence being undisputed that three persons went into the oil-room with a lighted lamp, and that whatever was drawn there was...