McFarland v. St. Paul Fire & Marine Insurance Company
| Decision Date | 07 July 1891 |
| Citation | 49 N.W. 253,46 Minn. 519 |
| Parties | Edward C. McFarland v. St. Paul Fire & Marine Insurance Company |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Ramsey County, Wilkin, J., presiding, refusing a new trial after verdict directed for defendant, in an action to recover $ 1,450 on a fire-insurance policy.
Order affirmed.
Johns Michael & Johns, for appellant.
George L. Bunn, for respondent.
Although the policy of insurance upon which plaintiff seeks to recover in this action, for a loss caused by the explosion of a gasoline stove, contained a clause which provided that, if the assured should keep or use gasoline upon the insured premises -- a dwelling-house -- without the written permission of the defendant company, the policy should be void, it is contended by him that as the house was insured without an application in writing, and without any representations being made, after the company's agent had full opportunity to examine the premises, by which examination he would have discovered that the gasoline stove was in common use for cooking purposes, it was chargeable with such knowledge as an investigation would have disclosed; and that therefore it assumed the risk as it actually existed when the policy was issued, subject to any use as a dwelling-house not so exceptional and peculiar that the defendant company could not be supposed to have anticipated. To put the plaintiff's proposition in another form, it is that when an insurance company issues a fire policy without inquiry, or without application or representations, it consents to any existing use of the insured property which it could have ascertained by reasonable investigation, although by the terms of the policy such a use is expressly prohibited, and there is nothing about the description of the property which necessarily implies or indicates that it may be used in the prohibited manner.
On the trial, testimony was offered and received in plaintiff's behalf which tended to prove that the practice of using gasoline stoves in dwelling-houses had become quite prevalent in the city wherein the insured property was located. Undoubtedly, the purpose of this testimony was to show that the use of the forbidden article in dwellings was not exceptional or peculiar, but, on the contrary, had become established by custom. Its sufficiency in this respect we need not stop to consider, for all of this class of testimony should have been excluded as immaterial. The policy, which had gone into plaintiff's hands, and the contents of which he is presumed to have known, was unequivocal on this point, and declared that if gasoline was used on the premises the contract for insurance should be void. There was no language in the instrument from which a different or contrary intention -- an intent to permit the use of gasoline -- could be gathered. The clause wherein its use was forbidden was not repugnant to any other provision, nor were there elsewhere terms or conditions...
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