Nash v. American Insurance Co.
| Decision Date | 25 October 1919 |
| Docket Number | 32962 |
| Parties | S. J. NASH, Appellant, v. AMERICAN INSURANCE COMPANY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 20, 1920.
Appeal from Warren District Court.--GEORGE B. LYNCH, Judge.
ACTION for indemnity stipulated in fire insurance policy resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.
Reversed.
Berry & Watson, for appellant.
F. P Henderson, for appellee.
I.
The policy on which this action was brought covered a silo when it was damaged by fire. The defendant denied liability on these grounds: (1) That plaintiff had increased the hazard, thereby rendering the policy void; (2) that the damages were caused by an explosion of vapor or gas, and not by fire; and (3) that the damages were consequent on the reckless conduct of the plaintiff. The question for consideration is whether any of these defenses were conclusively established.
The silo was 30 feet high, and 18 feet in diameter, resting on a concrete base. It was of frame construction, with one-piece timbers 30 feet long, and a galvanized iron roof, one or two pieces of which were loose. It had been filled with ensilage, the fall before, but the ensilage had been fed out until 10 or 12 feet from the bottom, when it began to freeze. Plaintiff then cut the ensilage from the center to the bottom, leaving that which had been frozen, about two feet in thickness, on the outside. This left an open space in the center, 12 or 14 feet in diameter. He then cut through this to a door, and, in the afternoon of February 1, 1918, with his son, entered through the open door, and started a fire in the center on the concrete floor. After the fire had burned a few minutes, he went for more fuel, and, upon his return, noticed that the fire had blazed up more than he had anticipated. Fuel was not added, and, after cautioning his son to remove his overcoat, he observed that "there were some of those chunks that were iced when we built the fire," had dried so that he "saw one kind of curl up." For the first time, he then apprehended danger, remarked that it was getting pretty warm, and, as his son was about to enter the silo, to push the fire back and settle it, the fire caught the shucks and silks "hanging around on the ensilage," and "blazed round and round until it got onto this dry material above the ensilage. " The witness explained that, when the knives of the ensilage cutter became dull, the shucks will hang on them, and the cutter is stopped, once in a while, to clear the knives of these husks. The ensilage had been frozen several days, and the witness thought the husks may have dried some in the meantime; that the fire burned about 25 minutes; that it flashed up quick, but not like an explosion; that it did not burn as though it might have been vapor or gas. The side boards or timbers of the silo were burned down different distances from the top, the hoops fell off, and, after a few days, it fell.
The recital of the evidence indicates plainly enough that the court might not have found that the injury to the insured property was caused by the generation or explosion of gas vapor. Quite as satisfactory an explanation is that heating the air within the silo caused a draft upward, from the cold air coming in at the open door, and that the fire first caught the husks and silks, and was carried up by the draft.
II. The policy provided that it should become void "if the hazard be increased by any means within the knowledge of the insured." The trial court held, and we think rightly that building the fire in the silo did, in fact, increase the hazard. Was this increase of hazard such as was contemplated by the clause quoted? If so, whatever the insured may have done, though temporary or incidental in its nature, in the use of his property, having that effect, must have rendered the contract invalid. Such is not the necessary construction of the clause quoted. Similar clauses have been held by other courts to have reference to changes in the use, situation, or exposure of the property, permanent in their nature. In Angier v. Western Assur. Co., 10 S.D. 82 (66 Am. St. 685, 71 N.W. 761), the stipulation was that "this entire policy shall be void * * * if the hazard be increased by any means within the control or knowledge of the insured," and the court held that the term In First Cong. Church v. Holyoke Mut. F. Ins. Co., 158 Mass. 475 (35 Am. St. 508, 33 N.E. 572), and Harris v. Columbiana Ins. Co., 4 Ohio St. 285, 286, the rule was announced that a casual or temporary change will not ordinarily be sufficient to void a policy under this provision. See, also, Williams v. New England F. Ins. Co., 31 Me. 219; Westchester Fire Ins. Co. v. Foster, 90 Ill. 121. The provision does not prohibit the owner from exercising the usual and ordinary acts of ownership. Jolly's Admrs. v. Baltimore Eq. Soc., 1 H. & G. 295 (18 Am. Dec. 288); Peterson v. Mississippi Valley Ins. Co., 24 Iowa 494. Nor does it include mere acts of negligence on his part, unless these are so continuous and of such a nature as to increase the hazard more or less permanently. It is to be presumed that the contract was entered into with...
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