Plinsky v. Germania F. & M. Ins. Co.

• Decision Date: 11 January 1887
• Citation: 32 F. 47
• Court: U.S. District Court — Eastern District of Michigan
• Parties: PLINSKY v. GERMANIA F. & M. INS. CO.

32 F. 47

PLINSKY v. GERMANIA F. & M. INS. CO.

United States Circuit Court, E.D. Michigan.

January 11, 1887

Syllabus by the Court

An insurance policy provided that, if the risk should be increased by any means whatever within the control of the assured, without the consent of the company, the policy should be void. The property, which consisted of a stock of goods, was described as 'contained in the first floor and basement of the building. ' Held, that a removal of the entire property from the first floor to the basement would not avoid the policy, though the risk were increased by such removal.

Where a policy upon a 'stock of candies, confectionery, toys fruit, and all such other stock as is usually kept for sale in confectionery stores,' provided that such policy should 'cease and determine if * * * fire-works should be kept temporarily or otherwise in the stocks of merchandise * * * insured herein,' it was held that, if fire-works were usually kept in stocks of the kind insured, the written part of the policy would control the printed part, and the keeping of fire-works would not avoid the policy.

Plaintiff was charged with the fraudulent burning of the property. The only evidence upon this point was that there was a social gathering in the store upon the evening before the fire; that plaintiff and her husband did not leave the place until 3 o'clock in the morning; that the husband closed the store for the night, took the key with him, and that they went directly to their house. The fire broke out a little after 6 in the morning, in the basement. The evidence was clear that some one had entered the building, and set the property on fire, and there was no evidence that the building had been broken into, or that any one but plaintiff's husband had the key to the outer door. Held, that there was no evidence that plaintiff herself was privy to the burning, and that she would not be affected by the fraudulent burning of the property by her husband.

Plaintiff's husband was asked, upon cross-examination, whether he was not out upon bail, charged with an assault with intent to murder. Held, that such out upon bail, charged with an assault with intent to murder. Held, that such question was within the discretion of the court, and its exclusion could not be claimed as error.

This was an action upon a policy of insurance upon the following property owned by the plaintiff, viz.:

'$250 on her stock of candies, confectioneries, toys, fruit, and all such other stock as is usually kept for sale in confectionery stores; $100 on her soda fountain generators, and appurtenances belonging thereto; $400 on her store, ice-cream parlor, and shop furniture and fixtures, including brick oven and belongings; $125 on her saloon furniture and fixtures, beer-pumps, mirror, bottles and glass-ware; $10 on her awning outside of building; $25 on her stock of wines, beers, liquors, and cigars; and $100 on her pool-table, balls, and cues,-- all contained in the first story and basement of the three-story brick building occupied by the insured as a confectionery store, bakery, saloon,' etc.

The defenses were (1) that the risk had been increased by the removal of the entire property from the first story to the basement of the building in which it was kept; (2) that fire-works were kept in the stock contrary to the provisions of the policy; (3) that the property was burned with the assent and connivance of the insured.

The jury returned a verdict for the plaintiff, and defendant moved for a new trial upon the grounds stated in the opinion of the court.

George W. Radford, for the motion.

H. H. Swan, for plaintiff.

BROWN J.

1. Exception was taken to the charge of the court, that if the plaintiff notified Duvernois, the local agent of the company in Detroit, that the property had been removed to the basement of the building, and he made no objection to such removal, the company could not defend upon the ground that such consent was not indorsed in writing upon the policy. This instruction may have been erroneous, although the authorities seem to be at variance upon the point; but in our opinion it is entirely immaterial, for the reason that the plaintiff was entitled to an instruction that, as matter of law, the removal of the goods to the basement was not an increase of risk, within the meaning of the policy. The language of the policy is that, 'if the above-mentioned premises shall be occupied or used so as to increase the risk, * * * or the risk be increased by * * * any means whatever within the control of the assured, without the assent of the company indorsed hereon, the policy shall become void. ' The first clause of this provision, that if the premises shall be used and occupied, evidently applies only to buildings which have become the subject of insurance. The second provision must be construed in connection with the description of the location of the property as 'contained in the first floor and basement of the building. ' It seems to us that this was a plain stipulation on the part of the company that the plaintiff should deal with her property as she chose, within the limits of the first floor and basement. She had no right to remove...