Swift v. Patrons' Androscoggin Mut. Fire Ins. Co.

• Decision Date: 10 April 1926
• Citation: 132 A. 745
• Parties: SWIFT v. PATRONS' ANDROSCOGGIN MUT. FIRE INS. CO.
• Court: Maine Supreme Court

132 A. 745

SWIFT

v. PATRONS' ANDROSCOGGIN MUT. FIRE INS. CO.

Supreme Judicial Court of Maine.

April 10, 1926.

Report from Superior Court, Kennebec County, at Law.

Action by Merton H. Swift, conservator, against the Patrons' Androscoggin Mutual Fire Insurance Company. On report from superior court at law on an agreed statement of facts. Judgment for defendant.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and BARNES, JJ.

Pattangall, Locke & Perkins, of Augusta, for plaintiff.

Harry Manser, of Auburn, for defendant.

STURGIS, J. This is an action on a fire insurance policy brought by the plaintiff as conservator of his ward's estate. The case is before this court upon an agreed statement of facts.

It appears that while Wadleigh Bros., of Belgrade, were engaged in pressing the assured's hay, using a combination gasoline engine and hay press assembled in a single unit, which, without the knowledge of the assured or his conservator, was located and in operation in a barn covered by the policy, the barn burned. The cause of the fire is not stated, and the originating responsibility of the engine is left problematical.

This policy was in the regular standard form, and contained, in addition to the usual provisions, the following:

"It is also a part of the consideration of this policy and it is especially agreed that the location and use of any gasoline engine in; any building described in the application for this policy, for furnishing power to thresh grain, cut ensilage or press hay renders this policy void. Gasoline engines may be set up on outside of barns and other buildings and power transmitted to machines within by means of a long belt. Small gasoline engines of from one to three horse power and of standard and approved makes may be used in insured buildings for pumping water, making electricity, running milking machines and other light farm work when same are set up in a place kept clean and free from oily rags and other inflammable material and gasoline tank filled only by daylight or incandescent electric light."

By the stipulation of the parties, the defendant's denial of liability is based on the foregoing provision in the policy.

A contract of insurance, like any other contract, is to be construed in accordance with the intention of the parties, which is to be ascertained from an examination of the whole instrument. All parts and clauses must be considered together that it may be seen if and how far one clause is explained, modified, limited, or controlled by the others. Blinn v. Ins. Co., 27 A. 263, 85 Me. 389; Smith v. Blake, 33 A. 992, 88 Me. 247.

This restrictive provision in this policy under consideration is a special condition of the contract, additional to the general prohibited articles clause. Reading the entire provision together, it appears that permission is in fact given to set up gasoline engines outside of buildings insured, transmitting power to the machines within by means of a long belt. It is only the location and use of gasoline engines within buildings insured for furnishing power to thresh grain, cut ensilage, or press hay which is prohibited. The effect of the entire provision is to restrict the place and manner of use, but not the use itself.

As a general rule, the use of a prohibited article, or the keeping and using of it, must be permanent or habitual in order to violate a policy prohibition against it. This rule is of general acceptance, and has been applied in leading American and English decisions. See 13 Ann. Cas. 540, 26 C. J. 22.

In Bouchard v. Insurance Co., 92 A. 899, 113 Me. 17, L. R. A. 1915D, 187. the general prohibited articles clause provided that the policy should be void if certain enumerated articles "shall be kept or used by the insured on the premises insured." One of the buildings insured burned while a gasoline engine was being used in it to thresh grain, and the case turned on whether or not the keeping or using of the gasoline in the tank of the engine was in violation of the policy inhibition. The court held that the prohibition in that policy contemplated an habitual and customary keeping or using of gasoline, and that the use of the fluid in the manner and under the conditions stated was temporary only and did not avoid the policy.

In the instant case it is the "location and use" of the engine itself in a place and for a purpose specifically prohibited by the policy which is in issue. To "locate" is "to set or establish in a particular spot or position; to settle; station; place." Webster New Int. Dic. The idea of permanency springing from "use" is well recognized. And, while the words "location and use" in this policy restriction do not, perhaps, import the same degree of permanency which is found in "kept or used" in the Bouchard Case, we think they do convey an idea of something more than a mere temporary or incidental operation of the engine.

It does not appear in the agreed statement of facts how long the engine in question had been in operation within the...