Stevens v. Mut. Prot. Fire Ins. Co.

• Decision Date: 04 March 1930
• Citation: Stevens v. Mut. Prot. Fire Ins. Co., 84 N.H. 275, 149 A. 498 (N.H. 1930)
• Parties: STEVENS v. MUTUAL PROTECTION FIRE INS. CO. SAME v. MERRIMACK MUTUAL FIRE INS. CO.
• Court: New Hampshire Supreme Court

149 A. 498

STEVENS

v. MUTUAL PROTECTION FIRE INS. CO.

SAME

v. MERRIMACK MUTUAL FIRE INS. CO.

Supreme Court of New Hampshire. Coos.

March 4, 1930.

[Copyrighted material omitted.]

[Ed. Note.—For other definitions of "Technicality," see Words and Phrases, Third Series.]

Exceptions from Superior Court, Coos County; Oakes, Judge.

Separate actions of assumpsit by Dean C. Stevens against the Mutual Protection Fire Insurance Company and against the Merrimack Mutual Fire Insurance Company, tried together. Verdicts for plaintiff, and defendants bring exceptions.

Judgment on the verdict.

Two actions of assumpsit, on two insurance policies to recover damages to a barn by fire. The actions were tried together, with verdicts for the plaintiff. Exceptions were taken by the defendants to the admission of evidence, to the denial of a motion for nonsuit, to a refusal to rule as requested, and to the argument of counsel. At the close of the evidence, the parties severally excepted to the denial of motions in each case for directed verdicts in their behalf; whereupon the defendants moved that the jury be dismissed, and that all questions, both of law and fact, be decided by the court, and excepted to the denial of this motion. All of the defendants' exceptions were allowed by Oakes, J. The material facts appear in the opinion.

Edmund Sullivan, of Berlin, for plaintiff.

Shurtleff & Hinkley, of Lancaster, and Shields & Conant and David S. Conant, all of St. Johnsbury, Vt., for defendants.

SNOW, J.

The policies insured the plaintiff's dwelling and attached stable. The actions are for fire damages to the latter.

It appears to be conceded that the fire originated from a Newtown kerosene oil brooder, which, subsequent to the date of the policy, and without the knowledge or permission of the companies, had been installed by the plaintiff in the second story or open chamber of the stable, where it had been in operation for about seven weeks. The chamber had a floor space of 24 feet by 28 feet and a post of 5 feet, and was open to the roof. Some years before it had been used as a hayloft. The brooder was installed upon the floor in one corner of the chamber from which the hay and chaff had been swept. Some hay and chaff remained in the opposite corner of the room. The brooder consisted of a galvanized iron hover, shaped like an unbrella, under the center of which was a single wick oil burner with a chimney—the wick being supplied with oil from an outside one-gallon glass tank through a pipe which passed underneath a grate of heavy gauged galvanized iron, upon which the supports of the burner rested. The grate was about one and a half inches, and the flame about one foot, above the floor. The wick was operated as in an oil stove by a thumb nut which was out of reach of the brood. This apparatus was inclosed by a wire fence, which left a space of 8 to 10 inches around it, within which the floor was covered about one inch deep with planer shavings as a litter for the chicks to run on. The brooder was designed to furnish artificial heat for the brood during the fledging period, was of modern type, and in common use. It was run day and night, and tended by the plaintiff three times a day, morning, noon and evening; the tank being filled and the wick cleaned and relighted each evening.

In the body of each policy appears the provision: "This policy shall be void and inoperative during the existence or continuance of the acts or condition of things stipulated against as follows." This clause is followed by a specification of the several "acts or condition" referred to, two of which, so far as material, were: (a) "If, without such [the company's] assent, the situation or circumstances affecting the risk shall * * * be so altered as to cause an increase of such risk"; (b) "if camphene, benzene, naptha or other chemical oils or burning fluids shall be kept or used * * * on the premises insured, except that what is known as refined petroleum, kerosene or coal-oil, may be used for lighting." The rider, upon each policy, specifying the property, covered contains a recital of several permitted rights, among which is the following: "Kerosene Oil Stoves. Permission is given for the use of Kerosene Oil Stoves."

In support of their motion for a directed verdict, the defendants contend (1) that the brooder, especially in the place installed and manner operated, did not come with the permissive clause; (2) that under the admitted or conclusively established facts its installation and use, as a matter of law, constituted an alteration increasing the risk within the terms of the voiding clause. These positions call for an understanding of the meaning of the foregoing provisions.

The clause in the body of the policy avoiding it if burning fluids were used, excepting only the use of kerosene oil for lighting, made necessary a further provision if the use of such oil was to be allowed for any other purpose. Such appears to have been the occasion for the clause (in the rider) expressly permitting the use of kerosene oil stoves. As the distinguishing feature of a stove is to produce heat, the logical inference is that this clause was designed to add the production of heat to the permissible uses of such oil, which without it was limited to lighting. The word "stove" covers a variety of heat-producing apparatus employed for various uses. Neither the name of a particular device nor its adaptability for a particular use necessarily determines whether or not it is a stove, nor is a comprehensive definition necessary here. It is sufficient for this case that it could be found that, in its function and design, as well as in the essential parts of its construction and in its operation, the brooder in question did not materially differ from the ordinary oil stove. It was therefore a permissible appliance under the terms of the policies.

As respects the place of its use, the language of this permissive clause is general. It is equally applicable to any part of the insured premises. The suggestion in argument that the court should take judicial notice that it is not customary in this state to use kerosene oil stoves in a barn cannot be followed. The court cannot say from its common knowledge that there is such a customary limitation in their use. On the contrary, it is our understanding that such stoves are rather commonly used wherever on the premises convenience and economy call for the maintenance of only a moderate degree of temperature. There is no evidence in support of the asserted limitation. The testimony of the defendants' agent of his understanding that the permissive clause was subject to an unexpressed limitation of use to dwellings has no evidentiary value in construing its meaning. "The particular and nonconcurring understanding of one of the parties is * * * usually immaterial." McConnell v. Lamontagne, 82 N. H. 423, 425, 134 A. 718, 719. "The interpretation of an insurance contract, like the interpretation of other contracts, depends upon the intention of the parties, ascertained from legally competent evidence. For sound reasons, universally recognized in the administration of justice, the evidence which is admissible upon the question of the meaning or intention of the parties does not include, ordinarily, their parol testimony. The point to be determined is not what they in fact intended or expected to do, but what they in fact expressed as their purpose in the writing presented for interpretation. * * * It is not the province of the court to make contracts for parties, or to allow them to change, modify, or abrogate their agreements by parol testimony that they did not intend to bind themselves by the terms they chose to employ as expressive of their intention." Marsh v. Insurance Co., 71 N. H. 253, 254, 51 A. 898, 899; Metropolitan Life Insurance Co. v. Olsen, 81 N. H. 143, 146, 123 A. 576, 32 A. L. R. 1472.

It would have been a simple matter to have limited the permission granted to the insured's dwelling, if that had been the intent. The terms of the policies permitting the use of oil stoves upon the insured premises being plain and unequivocal, it is not perceived on what principle evidence of the alleged custom, if one existed, could be held admissible to qualify the meaning of such terms. The mere fact that the brooder was in the chamber of the barn does not avoid the policy as a matter of law.

As respects the manner of the use and operation of kerosene oil stoves, the permissive clause carries no express or implied restriction. Their use on the premises is expressly sanctioned. In the absence of bad faith or an intention to destroy the property by fire, the insured may ordinarily make such manner of use of any permitted apparatus as he sees fit without voiding his right to recover for resulting fire damages. Injury to the insured's property occasioned by his mere misjudgment or carelessness is one of the risks insured against. Huckins v. Company, 31 N. H. 238, 247; Gove v. Company, 48 N. H. 41, 43, 97 Am. Dec. 572, 2 Am. Rep. 168; Boston Ice Co. v. Railroad, 77 N. H. 6, 19, 86 A. 356, 45 L. R. A. (N. S.) 845, Ann. Cas. 1914A, 1090; Vance, Ins. 462, 463; Richards, Ins. § 257.

The provision that the policy should be void if, without the insurer's assent, "the situation or circumstances affecting the risk shall * * * be so altered as to cause an increase of such risk," must be given a reasonable construction. Janvrin v. Insurance Co., 70 N. H. 35, 36, 46 A. 686, 687. In construing the same language, this court there said: "From the nature of things, there must necessarily be more or less changes in the situation and circumstances affecting fire insurance risks, which, while they may be said to theoretically increase the risk, yet do not materially increase it. It must, therefore have been intended that this contract should be subject to and unaffected by these slight changes, unless we are to understand that this clause was...