Renshaw v. Missouri State Mut. Fire & Marine Ins. Co.

• Decision Date: 17 March 1891
• Citation: 15 S.W. 945,103 Mo. 595
• Court: Missouri Supreme Court
• Parties: RENSHAW v. MISSOURI STATE MUT. FIRE & MARINE INS. CO.

15 S.W. 945

103 Mo. 595

RENSHAW v. MISSOURI STATE MUT. FIRE & MARINE INS. CO.

Supreme Court of Missouri, Division No. 2.

March 17, 1891.

FIRE INSURANCE — CONDITIONS OF POLICY — EVIDENCE.

1. In an action on a policy of fire insurance, the evidence disclosed that the ground floor of the building insured was used as a grocery store, and the rooms above as the residence of the proprietor; that about 2 o'clock in the morning there was a terrific explosion, which demolished the building, and killed several of the persons sleeping up stairs; that it was customary to keep 40 gallons of gasoline in a galvanized iron tank in the store, and to leave one gas-jet burning all night; that there had been a fire in the stove the preceding day; that coal-oil and matches were also kept in the room; that, a short while before the explosion, a witness, passing on the opposite side of the street, saw a light through the window, — "a glowing blaze, different from a gaslight," and bright enough to attract attention; that other witnesses who passed previous to the explosion saw no light; one witness heard the cry of fire just before the explosion; that, when the explosion occurred, a blaze of fire was thrown up into the air, and timbers from the building were on fire immediately after it fell. Held, that it was not error to submit to the jury the question whether the loss was occasioned by fire.

2. Though gasoline and coal-oil may be articles of the class kown as "extra hazardous," the keeping of them in reasonable quantities in a grocery store for the purpose of selling at retail, unless specifically prohibited in the policy, will not avoid a contract of fire insurance, notwithstanding provisions in the policy that it shall be void if the premises are occupied in such a way as to increase the risk, or if used for the purpose of "storing" any article denominated "hazardous" or "extra hazardous."

3. Where the indemnity provided for by a fire policy is against loss or damage by fire, without making any exception, a damage from an explosion will be covered by the policy, whether it result from an accidental fire gradually coming in contact with coal-oil or gasoline, or from an innocent fire, such as a gas-jet, purposely left burning, igniting the inflammable gas, mixed with atmosphere, which had escaped and filled the room.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

This was an action on a policy of insurance, as follows: "Missouri State Mutual Fire and Marine Insurance Company of St. Louis. By this policy of insurance, in consideration of thirty-seven and 50-100 dolars, do insure William Renshaw and legal representatives in the sum of five thousand dollars from August 17th, 1887, to August 17th, 1892, at 12 o'clock noon, against loss or damage by fire on four brick buildings, twelve hundred and fifty dollars on each, situated in St Louis, on the west side of 14th street, between Market street and Clark avenue, block No. 209 E., house Nos. 7, 9, 11, and 13. Privilege given to finish. 1887, September 17, other insurance permitted." To this policy was attached the following conditions: "If the risk shall be increased by any means whatsoever, or if such building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring," the policy should be void. "And it is agreed and declared that in case the premises or property hereby insured shall at any time after making, or during the continuance of, this policy, be appropriated, applied, or used to or for the purpose of carrying on or exercising any trade, business, or vocation denominated `hazardous' or `extra hazardous,' or for the purpose of storing therein any of the articles denominated `hazardous' or `extra hazardous,' unless provided for specially herein, or hereafter agreed to in writing by this corporation, this policy shall then and thenceforth cease, and be of no force or effect. Every policy of insurance issued by this company becomes void if more than twenty-five pounds of gunpowder are kept in an insured building, or on the premises where such insured property is contained." None of the other conditions have any bearing on the question in issue in the case. Defendant's answer admitted the execution and delivery of the policy, and set up by way of affirmative defense a breach of the conditions of the policy, as follows: "Defendant avers and charges that said premises were used for the purposes of carrying on a business hazardous and extra hazardous, to-wit, storing and selling therein of merchandise denominated `gasoline,' which is a dangerous and inflammable fluid, and greatly increases the risk of said insurance, and for this reason said policy became void and of no effect before the date of said alleged loss; that one of the conditions of said contract of insurance was that, if the situation or circumstances affecting the risk should be altered or changed so as to increase the risk, thereupon said policy should cease and determine; and defendant avers that the use of said inflammable fluid, as aforesaid, did increase the risk of said insurance, and render said policy null and void." It appeared from the evidence that these buildings were erected in the summer of 1887, and at the date of the policy were unfinished and unoccupied. The first floor of the houses were planned for occupation as retail business rooms, and the upper stories for lodging rooms and families. One of the houses was occupied by a Mr. Newman from about the 1st of October. He used the ground floor for a retail grocery store, and he, with his family, resided above. He kept gasoline in a galvanized iron tank in the store, and coal-oil in a similar tank and also in a barrel. These articles were used in his retail trade. About 2 o'clock on the night of November 1, 1887, there was a terrific explosion in this store-room, which demolished the building, and killed Mr. Newman and several members of his family, who were sleeping above. At the time of the explosion there were about 40 gallons of gasoline in the tank. It was shown that it was customary to keep one gas jet burning in the store during the night, and that there had been fire in a stove during the preceding day. Whether there was fire in the stove or a gas-jet burning at the time of the explosion did not satisfactorily appear. The other facts will sufficiently appear in the opinion.

Rowell & Ferriss and Jos. H. Zumbalew, for appellant. Chester H. Krum, for appellee.

MACFARLANE, J., (after stating the facts as above.)

1. The first contention by appellant is that there was no evidence on the trial that justified a submission to the jury of the question whether a loss occurred which was covered by the terms of the contract. The policy, by its express terms, insured the plaintiff against loss or damage to his buildings by fire. The contract is broad enough to include all fires, however originating, and all damages therefrom, of whatever character. The evidence shows the building was closed about 10 o'clock on the night of its destruction; that it had been the custom of the proprietor to leave one gas-jet burning during the night. The evidence did not disclose whether a light had been left burning on the night of this loss. A fire had been kept in a stove in the store-room during the day preceding the disaster, but there was no evidence that it had been continued during the night. Gasoline, coal-oil, and matches were kept in the building. A short time previous to the explosion, a witness testified that he passed on the opposite side of the street, and observed through the window a light, which he described as a "rather glowing blaze, different from a gas-light. It was quite a bright light; enough to attract my attention." Other witnesses, who passed previous to the explosion, testified that they observed no light in the building. One witness testified that she heard a cry of "Fire!" just a moment before the explosion. When the explosion occurred, a blaze of fire was thrown up into the air, and timbers from the building were on fire immediately after it fell.

We are of the opinion there was abundant evidence, not only to authorize the submission to the jury, but to justify the verdict that there was a fire in progress antecedent to the explosion. If there was such a blaze in the building as the one described by the witness, then no explanation of its existence there can be given on any other hypothesis than that a fire was at the time in progress. The fact that other witnesses had passed the premises a short time before without observing any light gives strength to this theory. The evidence of this witness alone, uncontradicted as it is, authorized a submission of the question to the jury.

2. During the trial, defendant called a witness who testified that he had been engaged as an insurance adjuster in St. Louis for 22 years, and was familiar with the insurance business in that city. This witness was asked in what class the article known as "gasoline" was placed by insurance men in the city of St. Louis. This question was objected to by counsel for plaintiff, who stated that there was no controversy that it was kept there as a part of a retail stock of groceries, and not otherwise stored. The court then stated "I think, if it is conceded that Mr. Newman kept a retail grocery, and only kept coal-oil and gasoline there as part of his retail grocery stock, that does not come within the provision of the policy which would avoid the policy. I do not think it applies to either of them. The objection will be sustained." After other questions had been asked this witness as to whether gasoline was designated by insurance companies as hazardous or extra hazardous; whether keeping it in an ordinary grocery store would be regarded as hazardous; whether higher rates of insurance were required on a stock of groceries, in an ordinary grocery store, on account of keeping gasoline as a part of the...