Mutual Fire Ins. Co. v. Coatesville Shoe Factory

• Decision Date: 31 January 1876
• Citation: 80 Pa. 407
• Parties: Mutual Fire Insurance Co. of Chester County <I>versus</I> Coatesville Shoe Factory, to the use of Babb.
• Court: Pennsylvania Supreme Court

80 Pa. 407

Mutual Fire Insurance Co. of Chester County versus Coatesville Shoe Factory, to the use of Babb.

Supreme Court of Pennsylvania.

January 21, 1876.

January 31, 1876.

January 21st 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Chester county: Of July Term 1875, No. 119.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

W. M. Hayes and W. Mac Veagh, for plaintiffs in error.—The law of insurance sustains these propositions, viz.: —

1. When there is no express contract in the policy, in relation to increase of risk, and where an increase takes place, the insured cannot recover if the loss has resulted from the increased risk.

2. If there is an express provision in the policy against increasing the risk, or increasing it in a particular manner, and the provision is violated, no recovery can be had on the policy, although the increase in the risk may not have caused the loss: Flanders on Fire Insurance 514, 515.

Whether or not the loss was actually occasioned by the increased risk is entirely outside of the question, and the defendant had a right to defend by simply saying that for a risk of this description they never agreed to become answerable: Merriam v. Middlesex Mutual Fire Ins. Co., 21 Pick. 162; People's Ins. Co. v. Spencer, 3 P. F. Smith 353; Woolmer v. Muilman, 1 W. Black. 427; Jennings v. Chenango County Mut. Ins. Co., 2 Denio 81; 1 Phillips on Ins., ch. ix., sec. 10; Lee v. Howard Fire Ins. Co., 3 Gray 583; Flanders on Fire Ins. 521; Diehl v. Adams County Mutual Ins. Co., 8 P. F. Smith 443. The list must be regarded as determining, by virtue of a written contract of the parties, what should constitute an increased risk, and to leave the question an open one to the jury was error: Lee v. Howard Ins. Co., 2 Gray 583; Harris v. Columbiana County Mut. Ins. Co., 4 Ohio St. 285; Washington Mut. Ins. Co. v. Mech. & Manufac. Mut. Ins. Co., 5 Id. 450. Where there has been an increased risk taken, not covered by the policy, the burden of the proof is on the insured, to show that the loss did not happen from the increased risk, rather than upon the insurer to show the contrary: Sohier v. Norwich Fire Ins. Co., 11 Allen 336; McLoon v. The Commercial Mut. Ins. Co., 100 Mass. 472; 2 Greenleaf on Evidence, sec. 408. The shock or concussion caused by an explosion is not a risk covered by an insurance against fire: Flanders on Fire Ins. 562, 563; Stanley v. Western Ins. Co., Law Rep. 3 Exch. 71.

G. F. Smith and W. B. Waddell, for defendants in error.— The explosion was occasioned by the fire, the defendants therefore are liable: Waters v. Ins. Co., 11 Peters 213; Insurance Co. v. Corlies, 21 Wend. 367; Greenwald v. Insurance Co., 3 Phila. Rep. 323; Scripture v. Insurance Co., 10 Cush. 356.

Judgment was entered in the Supreme Court, January 31st 1876, PER CURIAM.

Under the charge of the learned judge, the jury must have found that the injury from the fire in this case did not arise from the introduction and use of gasoline as a means of lighting the building. The injury not having arisen from any increased risk growing out of this cause, the first proposition of the plaintiff in error is disposed of. But it is contended that there are provisions in the policy which forbid such an increase of risk, and therefore that the policy is void, whether the loss resulted from this cause or not; and the complaint is, that the question of an increase of risk was submitted to the jury. If the postulate is admitted, the conclusion certainly is that there was error in not so charging. But there is no clause or provision in the policy which makes it void for a temporary increase of the...