Miller v. American Eagle Fire Ins. Co.

• Decision Date: 11 February 1930
• Citation: 253 N.Y. 64,170 N.E. 495
• Parties: MILLER v. AMERICAN EAGLE FIRE INS. CO.
• Court: New York Court of Appeals Court of Appeals

253 N.Y. 64

170 N.E. 495

MILLER

v.AMERICAN EAGLE FIRE INS. CO.

Court of Appeals of New York.

Feb. 11, 1930.

Action by Theodore H. Miller against the American Eagle Fire Insurance Company. From a judgment of the Appellate Division (226 App. Div. 772, 234 N. Y. S. 844), affirming a judgment of the Trial Term, the jury being waived, dismissing the complaint, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Harry C. Barker and John B. Grubb, both of Poughkeepsie, for appellant.

John E. Mack, of Poughkeepsie, for respondent.

CRANE, J.

The defendant insured a dwelling house owned by the plaintiff, and located on the South road of Poughkeepsie, on the main highway of the Albany Post road. The amount of the insurance was $6,000. There were three extensions, or renewals, of the policy, each covering a three-year period. The premises were used as a tea room as well as dwelling house, and later, for a period of some months before the fire, a restaurant had been conducted on the premises under the title of ‘Cedar Hill Farm.’ The signs on the house called attention to ‘Cedar Hill Farm's Blue Plate Dinner.’ As many as sixty in the good season had been fed in the dining room. In the kitchen was the usual cooking stove and kitchen utensils. One of the tenants had installed a gasoline stove or range in the kitchen, which proved to be the cause of a fire on October 20, 1925, destroying the building. The gasoline was kept in a tank near the stove, and fed from there to the stove. The tank carried five gallons, and the quantity generally used was three gallons. When the fire occurred, the occupants were pouring gasoline into the tank, after having just put out the light in the stove. The heat evidently caused an explosion which resulted in the fire.

The owner, Mr. Miller, the plaintiff in this action, knew that there was a restaurant being conducted in the place, for he took some meals there. There is no evidence that he knew about the installation or the use of the gasoline stove or the storage of gasoline on the premises.

The insurance company has successfully resisted payment of the insurance because of breach of conditions or because by the terms of the policy the risk was not covered. The policy contained the following provisions:

‘ Use of gasoline-Permission to keep on hand not exceeding one quart of gasoline, benzine or naptha for household use, but the use thereof for cooking, heating or lighting is prohibited without special permission endorsed on this policy.’

The policy further stated:

‘Unless otherwise provided by agreement in writing added hereto this Company shall not be liable for loss or damage occurring. * * *

‘(b) while the hazard is increased by any means within the control or knowledge of the insured; or * * *

‘(d) while there is kept, used or allowed on the described premises * * * benzine, gasoline,’ etc.

Whatever question might arise under clause (b), above quoted, because of a subtenant storing gasoline without the knowledge and beyond the control of Miller, the owner, no such question can arise as to the other clauses quoted. Coffaro v. Queen Ins. Co., of America, 217 App. Div. 197, 216 N. Y. S. 564, and the cases therein cited, refer to the increased risk caused by a tenant or subtenant without the knowledge of the insured. His knowledge or control is...