Traders' Ins. Co. v. Catlin

• Decision Date: 09 November 1896
• Citation: Traders' Ins. Co. v. Catlin, 163 Ill. 256, 45 N.E. 255 (Ill. 1896)
• Parties: TRADERS' INS. CO. et al. v. CATLIN.
• Court: Illinois Supreme Court

163 Ill. 256

45 N.E. 255

TRADERS' INS. CO. et al.

v.CATLIN.

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, Second district.

Actions by Thomas D. Catlin against the Traders' Insurance Company and the National Fire Insurance Company to recover on insurance policies. Judgments for plaintiff were affirmed by the appellate court (59 Ill. App. 162), and defendants appeal. Reversed.Darrow, Thomas & Thompson and L. C. Collins, for appellants.

D. B. Snow, for appellee.

This record is brought to this court seeking to reverse the judgment of the appellate court of the Second district, in which the judgment of the circuit court of Will county was affirmed in two cases wherein a judgment was rendered in favor of appellee against the appellants severally for $3,014.08 each. In January, 1893, appellees requested each of the appellants to issue policy of insurance upon certain property described as follows: ‘$160 on the frame granary, with shingle roof, situated about one hundred and fifty feet from above-described carriage house [referring to a buildingwhich was not destroyed, and which is not in controversy here]; $160 on boiler and engine, machinery, shafting, and belting and connections, and $2,600 on the frame hay and stock barn, with gravel roof, including basement and foundations, situated one hundred and forty feet from above-described granary; all situated on stock farm on section 16, township 33 N., range 14 east of the third principal meridian, in Will county, Illinois. Permission granted to make repairs and alterations.’ Each of these companies issued policies as requested, without inspection. After these policies were issued, a part of the barn was converted into a canning factory, with a capacity of 2,500 cans a day, where gasoline was used, and much machinery was placed therein. Between the granary and the hay and stock barn, and about 72 feet from each, was placed in the ground, about 5 feet below the surface, an iron tank, with a capacity for five barrels of gasoline. The machinery of the canning factory was connected with the gasoline tank by a pipe; and by means of a fan, operated by the machinery in the granary, air was forced through one pipe into the tank, thereby generating a gas which passed through another pipe to the connecting machinery into six several jets, to be ignited for soldering purposes when canning corn. The canning machinery had been operated some 10 days canning corn, and then work was suspended, and had been for 5 days, when the building and its contents were consumed by fire, on September 14, 1893. The policy issued by the Traders' Insurance Company contains this provision: ‘If the building described * * * shall be appropriated to any other purpose than herein specified, * * * or the risk increased * * * by any means within the control or knowledge of the assured, or if petroleum or any of its products * * * are under any circumstances * * * in the building * * * insured, * * * this policy shall, without the written consent of this company, and indorsed hereon, becomeabsolutely void. * * * Generating or evaporating within the building, or within one hundred feet thereof, of any substance for burning gas, or the use of gasoline for lighting or fuel, is prohibited, unless permitted in writing hereon.’ The policy of the National Fire Insurance Company provides, among other things: ‘If the assured shall fail to make known to the company at once any fact or circumstance which rendered the risk more hazardous than at the time of insuring, or if the hazard be increased by any means within the control of the assured, or if gasoline or petroleum or any of its products are deposited, used, or kept, or burning gas is made, generated, or carburetted within the building, or contiguous thereto, then, and in every such case, this policy shall be void, unless consent is indorsed by the company thereon.’ When the property was insured, no flame or jet of any kind was used in the hay and stock barn. The fire which destroyed the building commenced about 9 o'clock in the evening, at a point in the barn about 100 feet from the canning machinery. Its origin is unknown. The buildings insured as a hay and stock barn were at the customary rates of 1 1/4 per cent. The rate for canning factories was 2 1/2 to 3 per cent. for one year. With the Traders' Insurance Company canneries are prohibited risks. The assured had notice of the changed conditions. On the trial, eight witnesses who had experience in the insurance business, the inspection, examination, and classification of risks, investigating the cause of fires, etc., testified the changed use of a part of the hay and stock barn increased the hazard; that, while the increased hazard was great when the machinery was in operation, it was, if possible, even greater when the machinery was idle. The testimony was heard subject to objection,-the trial being before a judge without a jury,-but was held incompetent and excluded on the final finding by the judge. Certain propositions were asked by appellants to be held as law, which were refused. The questions presented on this record and assigned as error are as to the exclusion of the expert evidence, the refusal to hold as law propositions asked, and in holding the policies were in force at the time of the fire.

PHILLIPS, J. (after stating the facts).

The question of primary importance on this record is, were these policies in force at the time the property was destroyed by fire. Insurance Co. v. Wetmore, 32 Ill. 221, is a case where the conditions in the policy provided that if, after insurance, the insured buildings should be occupied in any way so as to render the risk more hazardous than at the time of insuring, or if the risk be increased by any means whatever within the control of the assured, such insurance should be void, so long as the premises shall be so appropriated, applied, or used. In the application for insurance in that case the premises are described as a dwelling house with some boarders. The evidence showed that for a period some time previous to the fire-but not when the fire happened-a room attached to the main building had been used as a stable for a horse, and the main building for a saloon. At the time this insured property was destroyed it was vacant. On this state of facts it was urged the use of the property as a stable increased the risk, etc. It was held: ‘Stables are special hazards, for the insuring of which a higher premium is demanded than for a dwelling or boarding house, but the proof shows that the fire did not occur whilst the small room was so used. The premises had been vacant some months before the fire, and there is no proof going to show that the use of the room increased the risk, or contributed in the remotest degree to the loss. Had the fire occurred whilst it was used as a stable, then doubtless the policy would have been avoided. The meaning of the condition is, if the house or premises shall be appropriated to any prohibited use, then so long as it is so appropriated the policy shall cease to bind the insurers.’ It was in that case further held: ‘The import of this language,-the contract in the policy,-it seems to us, is most clear, not that this policy shall be absolutely void to all intents and purposes, if the premises are misappropriated, but only while they are so improperly used the insurance shall have no effect. * * * By the express language of the condition * * * the policy was to be void and of no effect only as long as an improper use of the premises shall exist. When it ceases to exist, then the policy is in full force.’ This is a leading case in this state, and the court recognizes that it is not in accord with the decisions of New York, yet declares the rule to be as stated. This was followed by Schmidt v. Insurance Co., 41 Ill. 295, where the condition in the policy was: ‘No fire in or about said building, except under kettle securely set in masonry (used for heating water), and made perfectly secure against accidents.’ With this condition the contention of the company was that it was a warranty that there shall be no fire except under the kettle, and a breach would avoid the policy. It was held the words were used and...