Packard Mfg. Co. v. Indiana Lumbermens Mut. Ins. Co.
| Decision Date | 10 June 1947 |
| Docket Number | 39608 |
| Citation | 203 S.W.2d 415,356 Mo. 687 |
| Parties | Packard Manufacturing Company, a Corporation, v. Indiana Lumbermens Mutual Insurance Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied July 14, 1947.
Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.
Reversed and remanded (with directions).
Franklin E. Reagan for appellant; Adolph K. Schwartz and Sievers & Reagan of counsel.
(1) The circumstances showing the preparation for the fire and events leading up to it were proper matters to submit to the jury on the question of an increase in hazard. Shelton v. Great American Ins. Co. of New York, 100 S.W.2d 591; Everett v. Patrons' & Farmers' Mut. Fire Ins. Co of Jackson County, 7 S.W.2d 463. (2) The presence of gasoline or other inflammable liquids on the premises was sufficient to submit the issue of an increase in hazard without other supporting facts or circumstances. Williams v. Peoples Fire Ins. Co., 57 N.Y. 274; Taverna v. Palatine Ins. Co., 238 N.Y.S. 389; Freed's Inc. v. American Home Fire Assur. Co., 8 N.W.2d 923; Spinner v. Concordia Mut. Fire Ins. Co., 264 Mich. 388, 249 N.W. 886. (3) The trial court properly gave Instruction 8, which submitted the issue of whether the hazard had been increased by the storage of eleven gallons of gasoline on respondent's premises. It was for the jury to determine whether or not the presence of 11 gallons of gasoline on the premises was an increase in hazard within the meaning of the policy provision. Hyman v. Caledonian Ins. Co. of Scotland, 117 S.W.2d 617; Coffaro v. Queen Ins. Co., 216 N.Y.S. 565; Stevens v. Mut. Protection Fire Ins. Co., 149 A. 498. (4) The Prohibited Articles Warranty Clause in the policy of insurance is violated by the keeping of gasoline on the premises. Albertson v. Caroline Farmers Fire Ins. Co., 14 N.Y.S. (2d) 27; Miller v. American Eagle Fire Ins. Co., 253 N.Y. 64, 170 N.E. 495; Bailey v. Mutual Fire Ins. Co. of West Virginia, 182 S.E. 288; National Union Fire Ins. Co. v. Forkner, 219 Ky. 119, 292 S.W. 765; St. Paul Fire & Marine Ins. Co. v. Bachmann, 285 U.S. 112; Norwaysz v. Thuringia Ins. Co., 68 N.E. 551. (5) Where the parties have contracted that the insurance company will not assume any risk where gasoline is kept upon the premises in violation of this policy provision, the presence of 11 gallons of gasoline on the premises for some time prior to the fire is a violation of the Prohibited Articles Warranty Clause and defeats recovery. Firemen's Ins. Co. v. Hamby, 17 S.E.2d 610; Bailey v. Mutual Fire Ins. Co. of West Virginia, 182 S.E. 288. (6) Actual knowledge of the presence of 11 gallons of gasoline on the premises is not necessary to constitute a violation of the Prohibited Articles Warranty Clause. Merril v. Westchester F. Ins. Co., 75 F.2d 764; St. Paul F. & M. Ins. Co. v. Bachmann, 285 U.S. 112, 76 L.Ed. 648, 52 S.Ct. 270; Miller v. Union Assur. Soc., 39 F.2d 25; Leonard v. Northwestern Ins. Co., 53 App. D.C. 343, 290 F. 318; Morgan v. Germania Fire Ins. Co., 179 P. 330. (7) The storage of 11 gallons of gasoline on the premises by respondent's secretary for several weeks prior to and at the time of the fire was a violation of the Prohibited Articles Warranty Clause which forfeited the policy and the trial court should have directed a verdict for appellant. Kenefick v. Norwich Union Fire Ins. Co., 103 S.W. 957, 205 Mo. 294; Trichelle v. Sherman, 259 Ill.App. 346; German Fire Ins. Co. v. Board of Commissioners of Shawnee County, 54 Kan. 732, 39 P. 697; Gunther v. Liverpool & London Ins. Co., 134 U.S. 110, 10 S.Ct. 448, 33 L.Ed. 857. (8) The knowledge of the managing officers of a corporation that gasoline was being kept or stored on the premises was knowledge to the corporation itself. Council v. St. Louis & Santa Fe Railroad Co., 100 S.W. 57, 123 Mo.App. 432; Scrivner v. American Car & Foundry Co., 50 S.W.2d 1001, 330 Mo. 408; Schneider v. Schneider, 146 S.W.2d 584, 347 Mo. 102. (9) The trial court properly refused to give Instruction C since the Prohibited Articles Warranty Clause was violated by the presence of gasoline on the premises, regardless of whether said gasoline caused or contributed to cause the fire. Kenefick v. Norwich Union Fire Ins. Co., 103 S.W. 957, 205 Mo. 294. (10) The contract herein between the parties prohibited the presence of gasoline on the premises, and the only duty of the court is to interpret, and not to rewrite, the contract. Henderson v. Massachusetts Bonding & Ins. Co., 84 S.W.2d 922. (11) The amount of gasoline stored is not material in so far as the violation of the Prohibited Articles Warranty Clause is concerned. Ertischek v. New Hampshire Fire Ins. Co., 167 N.Y.S. 58, affirmed 126 N.E. 906. (12) To constitute a violation of the Prohibited Articles Warranty Clause it is not necessary that gasoline on the premises actually increase the risk. Norwaysz v. Thuringia Ins. Co., 68 N.E. 551, 204 Ill. 334. (13) The storage of gasoline by an employee or officer voids the policy. Albertson v. Caroline Farmers Fire Ins. Co., 14 N.Y.S. (2d) 27; Boyer v. Grand Rapids Fire Ins. Co., 83 N.W. 124, 124 Mich. 455. (14) The storage of gasoline on the premises without the owner's knowledge or consent voids the policy. See cases under Point (6). (15) The keeping of a prohibited article, such as gasoline, violates the Prohibited Articles Warranty Clause, and it is wholly immaterial whether the presence of gasoline on the premises caused or contributed to cause the fire. Morgan v. Germania Fire Ins. Co., 104 Kan. 383, 179 P. 330; Filardo v. Natl. Union Fire Ins. Co., 224 A.D. 136, 229 N.Y.S. 682; Taverna v. Palatine Ins. Co., 238 N.Y.S. 389; 26 C.J., sec. 267; Ertischek v. N.H. Fire Ins. Co. of Manchester, 167 N.Y.S. 58, 179 A.D. 827.
N. Murry Edwards and James A. Waechter for respondent.
(1) The trial court erred in giving defendant's Instruction 2 directing a verdict for defendant and erroneously defining "increase of hazard" as a new or different use of the premises or property which may or may not have any connection with the fire which damaged the premises or property. Angier v. Western Assurance Co., 71 N.W. 761; Crane v. City Ins. Co., 3 F. 558; German Fire Ins. Co. v. Stewart, 42 N.E. 286; Rossini v. St. Paul Fire & Marine Ins. Co., 188 P. 564; Hartford Fire Ins. Co. v. Dorroh, 133 S.W. 465. (2) The trial court erred in giving Instruction 8, which instruction erroneously directed a verdict for defendant and submitted to the jury whether or not there were two five-gallon cans and a one-gallon jug of gasoline in the building belonging to Paul Schneider before the fire and erred in erroneously directing the jury in said instruction that if plaintiff allowed or permitted two five-gallon cans and a one-gallon jug of gasoline, the property of Schneider, to be brought into the building and by reason thereof the hazard was increased, they should find for the defendant. The instruction was erroneous and there was no evidence to support it. Security Ins. of New Haven v. Dazey, 78 F.2d 537; Schaffer v. Hampton Farmers Mut. Ins. Co., 235 N.W. 618; Royal Ex. Ins. of London v. Thrower, 246 F. 768; St. Paul F. v. Bachmann, 285 U.S. 113; Hannan v. Ehrlich, 131 N.E. 504; Warberton & King v. Woods, 6 Mo. 8; Evans v. U.S. Fid. & Guaranty Co., 195 Mo.App. 438. (3) The trial court erred in giving Instruction 9 and directing a verdict for the defendant on the finding by the jury that plaintiff allowed to be stored on the premises 11 gallons of gasoline which was the property of Schneider. There was no evidence to support this instruction. See authorities under Point (2); London and L. Fire Ins. v. Fisher, 92 F. 500. (4) The trial court erred in refusing to give plaintiff's Instruction C, which directed the jury that if they found that said 11 gallons of gasoline, more or less, did not contribute to cause the fire and was only temporarily left in the building and did not constitute a keeping or allowing to be kept by plaintiff on plaintiff's premises, then it did not void the policies. This instruction clearly defined the law and should have been given. Smith v. German Ins. Co., 65 N.W. 236; Lawrence & Sons v. Merchants & Mut. Aid Soc., 277 S.W. 588; Henderson v. Mass. Bonding & Ins. Co., 84 S.W.2d 922; Lafonce v. Williams City Ins. Co., 43 Mo.App. 518; Columbia Planing Mill Co. v. Ins. Co., 59 Mo.App. 204.
The Packard Manufacturing Company, a corporation, instituted this action against the Indiana Lumbermens Mutual Insurance Company, a corporation, to recover $ 40,500.62 (also interest, penalties, and attorney fees) under three insurance policies issued in April, June, and October of 1943, "on machinery, including blow pipe system complete, and on stock while contained in buildings" occupied by the insured in St. Louis, Missouri, and protecting against loss and damage thereto by fire for one year. The jury found for the insurer. Insured's motion for new trial was sustained. Insurer appealed and now contends that insured had no submissible case because gasoline had been and was upon the premises before and at the time of the fire and caused the policies to stand suspended at the time of the loss. Each policy contained the following provisions:
"This entire policy, unless otherwise provided by agreement indorsed 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 described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitro-glycerine or other explosives . . ."
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