Norwaysz v. Thuringia Ins. Co.

• Decision Date: 26 October 1903
• Citation: 68 N.E. 551,204 Ill. 334
• Parties: NORWAYSZ v. THURINGIA INS. CO.
• Court: Illinois Supreme Court

204 Ill. 334

68 N.E. 551

NORWAYSZ

v.THURINGIA INS. CO.

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Appellate Court, First District.

Action by Leopold Norwaysz against the Thuringia Insurance Company. From a judgment of the Appellate Court (104 Ill. App. 390) reversing a judgment in favor of plaintiff, he appeals. Affirmed.William A. Doyle, for appellant.

Lackner, Butz & Miller, for appellee.

RICKS, J.

This was an action of assumpsit upon a policy of insurance for $1,900, issued by the Thuringia Fire Insurance Company, appellee, on December 21, 1899, insuring the frame buildings of Leopold Norwaysz, appellant, against a loss by fire for the period of three years from the date of the policy. The premises insured were located at 4346 Honore street, in the city of Chicago, and were destroyed by fire June 21, 1900. There was a verdict and judgment in favor of appellant in the circuit court of Cook county for $1,768.64. This judgment was reversed by the Appellate Court on the ground that the trial court erred in refusing to direct a verdict for the defendant at the close of all the evidence.

The errors relied upon by appellant for a reversal of the judgment of the Appellate Court are the following: (1) The Appellate Court erred in not affirming the judgment of the circuit court, having found the facts in issue the same as the trial court; (2) the Appellate Court erred in finding that the circuit court erred in the application of law to the undisputed facts in the case; (3) the Appellate Court erred in its construction of the policy of insurance;(6) the Appellate Court erred in not remanding this case to the circuit court, having reversed the judgment of the said circuit court.

The sixth assignment presents the question whether the record shows a case for review in this court. The error assigned is that the Appellate Court erred in not remanding the case to the circuit court, having reversed the judgment of the said circuit court. The judgment of the Appellate Court does not recite a finding of fact. Although reversing the court below, it does not remand the cause for another trial. In such a case it will be inferred that the Appellate Court found the facts the same as the trial court. It will also be presumed from the fact that the case was not remanded that the error committed was not one arising during the progress of the trial, such as error in admitting or excluding evidence or giving or refusing general instructions. Therefore, having found the facts the same and not having reversed the judgment for error arising during the progress of the trial, the Appellate Court must be presumed to have held that the evidence in the record did not prove or tend to prove a cause of action. Brant v. Lill, 96 Ill. 608;Post v. Union Nat. Bank, 159 Ill. 421, 42 N. E. 976;Busenbark v. Saul, 184 Ill. 343, 56 N. E. 417;Supple v. Agnew, 191 Ill. 439, 61 N. E. 392. This court has therefore jurisdiction in this case for the purpose of ascertaining whether there was evidence tending to show a right of action in the plaintiff.

The policy in question contained the following clause: ‘This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if * * * or if the hazard be increased by any means within the control or knowledge of the insured; * * * or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above premises, benzine, benzole, dynamite, ether, fireworks, gasoline, greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerine or other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard.’ Attached to the policy was a ‘rider’ which contained a ‘vapor stove and gasoline permit,’ in the following words: ‘Permission is hereby given for the use of gasoline stoves, the reservoir to be filled by daylight only and when the stove is not in use. Warranted by the assured that no artificial light be permitted in the room when the reservoir is being filled, and no gasoline, except that contained in said reservoir, shall be kept within the building, and not more than five gallons, to be in a tight and entirely closed metallic can, free from leak, on the premises adjacent thereto.’ Beneath this the word ‘Caution,’ printed in boldfaced type, drew the attention to the following: ‘The danger from gasoline stoves is not so much in themselves as in having the material about. At ordinary temperature gasoline continually gives off inflammable vapor, and a light some distance from the material will ignite it through the medium of this vapor. It is said that one pint of gasoline will impregnate two hundred cubic feet of air and make it explosive, and it depends upon the proportion of air and vapor whether it becomes a burning gas or destructive explosive. Beward of any leaks in cans, and never forget how dangerous a material you are handling.’ It is because of the violation of the prohibitive clause in this ‘rider’ that the defendant below moved the court, at the close of the evidence, to direct a verdict for the defendant.

The evidence of this violation is contained in the testimony of Mrs. Anna Glatky, who was introduced by the appellant to give evidence in rebuttal. Her material testimony was as follows, on direct examination: ‘Q. Where did you live about June 21, 1900? A. On Honore street, in that house that burned down. Q. Who did you rent the place from? A. Leopold Norwaysz. Q. Were you living there at the time of the fire? A. We rented; we moved there the tenth and the fire was on the twenty-first.’ Redirect examination: ‘Q. When you moved into this place, on or about the tenth, what did you use for lighting purposes in this house-coal oil or gas? A. We used kerosene. We had two stoves in there; one we used coal in and the other we used oil. Q. Did you buy, or your husband, any kerosene at the time, or shortly after you moved in there, for household use? A. I had a gallon of kerosene and also a gallon of gasoline.’ Re-cross-examination: ‘Q. When did you get the gallon of kerosene and when did you get the gallon of gasoline? A. I don't remember what date; I know I had it. Q. How long after you moved in there? A. About the second or third day; but in the summer time we used very little. Q. What did you use the gasoline for? A. Stove cooking during summer. Q. You had a gasoline stove? A. Yes, sir; we did. Q. Where did you keep that gallon of gasoline? A. Why, I had the stove filled and the balance in the pantry. Q. How much was in the can in the pantry? A. Almost full-not very much taken out. Q. Where was the pantry? A. In the kitchen. Q. How many rooms did you occupy? A. We had a front room, kitchen, and two bed rooms. Q. Those rooms you speak of were in the front, downstairs, of the house 4346 Honore street. Is that right? A. Yes, sir. Q. Did that gallon of gasoline remain in that pantry or that kitchen up to the time of the fire? A. Yes, sir; it was there. Q. Almost full was it-the can? A. Yes, sir. Q. At the time of the fire this gallon can was almost full, was it? A. Yes, sir; a lamp filled with oil. Q. The lamps were filled? I say the gasoline can; that was almost full at the time of the fire? A. Pretty nearly full; yes, sir. We used some for the stoves.’

There was no other evidence introduced to contradict the testimony of this witness, and it must be taken as entirely undisputed. The only question, therefore, necessary to be considered by this court is whether, as a matter of law, the testimony of Mrs. Glatky shows facts sufficient to constitute such violation of the terms of the policy as will relieve the insurer from liability thereon.

Counsel for appellant cites numerous cases to the point that where there is a question whether or not the hazard was increased it is a fact to be determined by the jury. The cases undoubtedly support the doctrine, but neither the cases nor the doctrine have any application to the case under consideration To be sure, there was a clause in the policy which provided, ‘or if the hazard be increased by any means within control or knowledge of the insured,’ but it is entirely separate from the clause which prohibits the keeping or use of gasoline. The paragraph begins, ‘This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if,’ and then follows a series of co-ordinate clauses, each punctuated by a semicolon. Among these clauses are the two in question-the one prohibiting an increase of risk by any means within the knowledge or control of the insured; the other prohibitingthe keeping or using of gasoline on the premises. They are entirely disassociated in fact, and there is no rule of construction that would require or suggest their connection.

It is suggested that a rule of construction applicable to this case is that all parts of the contract are to be considered together. That is unquestionably a valuable rule, but it must not be applied to the extent of reading two separate clauses as one just because one can be attached to the other without destroying the meaning of either. The position of counsel for appellant is this: One clause prohibits the use of gasoline; another clause prevents the increase of hazard by any means; therefore the prohibition of the use of gasoline means only such use as a jury would decide to be an increase in the hazard. Such a construction is so extravagant that it would be useless to cite authorities for rejecting it, were it not that the appellant has based the greater part of his argument upon the assumption that the two clauses must be read together.

In Newport Imp. Co. v. Home Ins. Co., 163 N. Y. 237, 57 N. E. 475, the policy, very similar to the one under consideration, read: ‘This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void,...