Springfield Fire & Marine Ins. Co. v. Wade

• Decision Date: 19 June 1902
• Citation: Springfield Fire & Marine Ins. Co. v. Wade, 68 S.W. 977, 95 Tex. 598 (Tex. 1902)
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. v. WADE.
• Court: Texas Supreme Court

Page 977

68 S.W. 977

SPRINGFIELD FIRE & MARINE INS. CO. v. WADE.

Supreme Court of Texas.

June 19, 1902.

Certified questions from court of civil appeals of Fifth supreme judicial district.

Action by Thomas L. Wade against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Questions certified to the supreme court. Questions answered.

Alexander & Thompson, S. J. Hogsett, and Thomas Bates, for appellant. Smith, Templeton & Tolbert, for appellee.

WILLIAMS, J.

The certificate is as follows:

"The appellant issued to the appellee an ordinary standard fire insurance policy, covering a house and household furniture. Among other provisions, the policy contained the following: `Permission is hereby given for the using of a gasoline stove; the reservoir to be filled by daylight only, and when the stove is not in use. Warranted by the assured that no artificial light will be permitted in the room when the reservoir is being filled, and no gasoline, except that contained in the reservoir, shall be kept within the building, and not more than five gallons, in a tight, entirely closed, metallic can, free from leak, on the premises adjacent thereto. This entire policy, unless otherwise provided by agreement indorsed hereon and added hereto, shall be void 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, gasoline, etc.' The ground urged by appellant to avoid liability on the policy is the use of gasoline, as shown by the testimony of appellee, which is as follows: `About noon of the 26th day of March, 1901, as I left the house, my wife requested me to send up a gallon of gasoline for use on the premises. I declined to do so. She subsequently sent to the grocer and bought a gallon, a part of which was used by her that afternoon,—so she told me that evening, when I went home. I was not aware that the gasoline had been brought on the place until about seven o'clock that night, when I was home for the night, when she told me she had gasoline on the premises, and that she had not used it all, and desired to know of me what she should do with the portion unused. I told her to thrown it out. I was reading at the time, and paid no further attention to it, but I supposed she had thrown it out. About ten o'clock at night, having occasion to go into my back yard, I passed through the house, with a view of going out the back door, through the kitchen. It being dark, I struck a match in the kitchen to see how to get out of the back door. The match burned low, and seeing what I supposed to be a little tub sitting on the floor, containing what I supposed was dirty water, I threw the unburned portion of the match into this tub. As I did so, the flame shot up out of the tub. I attempted to open the door and throw the tub out; holding the tub with one hand, and attempting to open the door with the other. The tub had become hot, and I dropped my handhold on the tub, and in falling it tilted, and the burning gasoline ran out on the floor, and as a result the property was destroyed.' It was also shown that no gasoline stove was used on the premises.

"Questions: (1) Do the facts above stated authorize a recovery by appellee, or was the use of gasoline, and the origin of the fire, in the manner stated, such a violation of the terms of the policy as caused a forfeiture thereof, and prevented a recovery thereon? (2) Is the temporary having of a small quantity of gasoline on insured premises, to be used for household purposes, other than for fuel, a violation of such prohibitory clause?"

The question upon which the decision of both of those put by the court depends is: Do the facts stated show a breach of the warranty that no gasoline shall be "kept, used, or allowed" on the premises? The fact that the fire was caused by the gasoline, or by the negligence of the insured, if there was such negligence, is not, by the policy, as stated, made a ground for avoiding it; and it is properly conceded by appellee that the permission to use a gasoline stove does not affect the case. The question therefore is, as stated, whether or not the gasoline, in the sense in which those words are used in the contract, was "kept, used, or allowed" on the premises. We find it unnecessary to determine the extent to which appellee is responsible for the acts of his wife to which he did not consent. For the purposes of this case alone, it will be assumed that all that was done is properly chargeable to appellee. That the gasoline was not kept on the premises is clear. "It is not enough, according to this phraseology, that hazardous articles are upon the premises. They must be there for the purpose of being stored or kept." Hynds v. Insurance Co., 11 N. Y. 554. That this is substantially true, all of the authorities agree. Mears v. Insurance Co., 92 Pa. 15, 37 Am. Rep. 647; Insurance Co. v. Whiteford, 31 Md. 219, 100 Am. Rep. 45; Insurance Co. v. Simmons, 30 Pa. 299; First Cong. Church of Rockland v. Holyoke Mut. Fire Ins. Co., 158 Mass. 479, 33 N. E....