PLINSXY V. ,GERMANI4 'F. '&; :¥. INS. CO. "
PLINSKY til GERMANIAF.,&:M. INS. I"
Co.
(di?'cuit V01J,?'t, :E. D. Michigan.
1.
FrnE INsURANCE-FoRFEITURE-INCREASE OF
An insurance policy provided that, if the risk should be increased by any means whlMver within the control of the assured, withqut the consent of the company. the policy should be void. The property, which consisted of a stock of was described as « contained in thQ first lloorand basem,enMf the buildmg," Held, that a removalof the entire property {rom the first floor to the would not avoid the policy, though the risk were increased bysuc.h removal. ' " '
,RiSK.
"
,
8:AME":"CONSTRUCTION 0:8' POLICV-Cl'lNFLICTlNG CAUSES..
Where a policy upon a ",stock of cl/.nqies, confectionery, toys, fruit, and aU such other stock as is usually keptfor sale in confElCtionery IItores, " ,provided that such policr. should" cea,se and determine if ' * * * ,'firecworkllsh,ouldbe kepttemporanly or otherwise in th'e 'stocks ofmerch.andlse; * * * i 1DSUlied he.r,eip., II it,' eld t,hlLt, ,if w, ere usu,ally kept of the kin!! -insurl!d,tp,e part of the pollc1 wlj>uld C?ntrol the'prlnted part, and the keeping of tire-works would not avold·tlie-pohcy. " I . ." · '.
'11.
8AMm:-Lol!8\.oo.FRAUDULENT 'BtJRNI1'lG.
Plaintiff's husband wall upon cross-examination, whether he wasnot out upbn bail,. charged with an assault with intent to,murder. ·Held. that such 'questiOn was within the discretion of the ,court, itll exclusion c9uld not be claimed as.error. ," ' (Syllabus by theOourt.) On' Motion for aNew Tri8.I. . This was a. policy i:lrty owned by the ' .' . ".', .',. : , .. 1 "$250 On her .stOck! of .. fruIt. anil all s1l,ch (ltherstock as is usually sale In Col1fecti9nery stores; $100 on her generators. and appurtenances belonging thereto; $400 on her store, ice-cream parlor, and shop furniture and lixllures, including brick oven and belongings ;$125 on her saloon furniture ,and. fixtures, beer-pump. mIrror, bottles, a.nd glass-ware; $10 on her a.wning outside of building; $25 on her, stock of "wines. beers" liqnors, and, cigars; and $100 on her pool-table, balls" and,c,ullll,-all contained in the first story!!ond basement of the threestory brick buildIng occupied by the insured as a confectionery store. bakery, saloon, "etc. ' The defenses were (1) that theriskhad been increased by the removal 'Qf the entire property from the first story to the basement of the building in which it was kept; (2) thattlre-works were kept in the stock con-
-t ,
Plaintiff was charged with the Jraudulent burning of the propel1l'; The only eviqence uponthis pqint was that there was a social gatherin ,in the ,store upon the evening b'efore the fire; that plaintiff and her husbah did not leave the place untiU'o'clock'in the morning;thakthe husband closed the store for night. took the ,key· with him; and that they went directly t() hQ\lsjl. The tire ,broke out a little, after II in the morning, in the bai\emetit. Th'e'evidence was clear that some one"hild'entered the building. ands.nhe property on :fire, and there was no eVidence that tblt building had been.broken Into,or tllat but pllJ,llltiff's husbapd had .the key the outer. door. Held, there was no evidehce thafplaintiff'herself'was privy to,the burning. sndthat she would not be affected'byth'6 fraudulent burning of the propertyby her husband. <..- , . : , r; CO:tJRT·. ,
48
FEDERAL REPORTER.
trary to the provisions of the policYi (3) that the property was bumed with the assent and connivance of the insured. The jury returned a verdict for the plaintiff, and defendant moved for a new triaL upon the grounds stated in the opinion of the court. George W. Radford, for the motion. H. H. Swan, for plaintiff. J.1.'Exceptiop was to the charge of the court, that if the plaintiff notified Duvernois, the agent of the company in Detroit, that the property had been removed to the basement of the building, and he made no objeCtion to such removal, thecompariy could not defend upon the ground that such consent was not indprsed in writing upolltbepolicy.. Thisiristructiollmay have been ert'oneous, although the authorities seem to 'be at variance upon the point; but in our opinion it'isentirelyimmaterial, for the reason that the plaintiff was entitled ,to, an inst"-llctiori,that; Rsin,atter of law, the removal of the goods to the basement was not an increase Qfrisk, within the meaning of tpe policy. The language of the policy is that; "if the above-mentioned premises shall' ,):ie()ccupied or used so as to increase the risk, *' * '" or the riskbe'increas,ed by, *, *, * any means whateverwithin the control .. (jf the tlSsured, without the assent of the. company indorsed hereon, the poli¢,y. become void.'" The first clause of this provision, that if the premisesshaJl be used anq occupied, evidently applies Qnly to buildings whidh SUbject o.f insurance.. ' 'Fhe second pro.vision must be pon,s,true(l,lll cQnnectli)ll :WIth the descnptlOn of the 10catlOn of the properJy' as "contained in ,the first floor and basement of the building." It seems to us that this was a plain stipulation on the part of the company that the plaintiff should deal with her property as she chose, basement. She had no right to within the limits of the first floor remove it from 'the building,nor to the second floor of the same building, but it could not reasonably be expected that the property would remain distributed between the first floor and basement precisely as it was the time the policy was executed. It was undoubtedly made with refgen(ll'al practice of shop-keepers bringing goods up from the erence to basement and placing them for sale on the first floor, and sending unsalable or deteri()rated goods from the first floor to the basement, although ids possible tha.t the risk ,might be sensibly increased by such transfers. If this maybe done with respect to a part of a stock, I see no reason why it may not. be dope with respect to thewhole of it. It would hardly be'claimed that ifthe plaintiff" had desired to place her en.tire stock in the 'basement on sale she would not hav.e been at liberty to to withdraw her entire carry it'to the Brst floor. So, if from sale, I reason to doubt 'she could send it down to the basement; there being no stipulation 'in 'the policy that any particular portion of the property should be kept either in the basement or upon thefirsffIooT.' There can be no questIon that the insured, unless restricted in sorne way by the poHcy,might use, proteckand enjoy her property ,as' such property is custotnarily used .. enjoyed, and protected;
PLINSKY V. GERMANlA F. &M. INS. CO.
49
and to infer, without an express provision or necessary implication arising out of the contract itself or public policy demanding it, that the insured surrendered all righ t to make the usual changes of or additions to her property as its safety or her convenience or comfort might suggest, is a construction too rigorous to be rational. May, Ins. 247; Jolly v. Equitable Soc., 1 Har. & G. 295; Shaw v. RobberdB, 6 Adol. & E. 75. Within the literalism of the policy, the transfer of any portion of the goods from the first floor to the basement would be an increase of risk, and would avoid 'the policy, if the theory of the plaintiff be true that such removal of the entire stock had this effect. Wood, Ins. § 238. There is much force,' too, in the suggestion that there was no evidence of an increase of risk by the removal of this stock to the basement. The only testimony tending in that direction was that, by the removal to the basement, the goods became second-hand goods. This would not, of itself, increase the risk of an accidental burning; for it was not pretended that the goods were not as safe in the basement as upon the first floor. Conceding that it would increase the temptation to a fraudulent cp,struction of the property, it may well be replied that the company did not insure against such fraudulent destruction. Upon the theory of the, defendant, the insolvency of the plaintiff or the suspension of her business in any way would. depreciate her stock, or, to use the words of the witness, "make it goods," and thus operate to increase the risk of its fraudulent destruction. Upon this theory, the insolvency of a merchant would at once invalidate every policy of insurance upon his goods. It seems to us that the 'increase of risk contemplated by the policy was the introduction of new and hazardous goods, new or unusual methods of heating or lighting, or some other means which subjected the goods to an additional danger of an accidental fire. 2. The second objection is that the court admitted testimony that fireworks were usually kept in stocks of confectionery and toys, and hence that the keeping of such fire-works did not avoid the policy, notwithstanding its provision that it should "cease and determine if * * * fire-works shall be kept, temporarily or otherwise, in the stocks of merchandise * * * insured herein." This provision, too, must be construed in connection with the written portion of the policy, which insured" her stock of candies, confectionery, toys, fruit, and all such other stock as is usually kept for sale in confectionery stores." The rule in such cases is well settled that, if the prohibited article be usually kept in the stock insured, the written part of the policy shall control the printed portion, and the keeping of the prohibited article will not avoid the· policy. The Massachusetts cases are the other way, but the law is too firmly settled to be disturbed. Wood, Fire Ins. 169, 170. In this connection the case of Steinbach v. Insurance Co., 13 Wall. 183, was relied upon by the defendant. This was a suit upon a fire policy upon a stock of fancy goods, toys, and other articles "contained in the brick building," etc., "and now in his occupancy as a German jobber and importer, privileged to keep fire-crackers on sale." The insured not only kept fire-crackers on sale, but fire-works, which were classed as v .32F :no.I-4
FEDERAL . REPORTER.
bazardous, and for which an extra premium was charged. Thecourt held the policy to have been avoided, apparently upon the ground that theprivilflge to keep fire-crackers on sale was an exclusion of the right to keep other hazardous articles, notwithstanding the testimony that fireworks constituted an article in the line of business of a German importer. In this particular the case is distinguished from the one under consideration. If it .were not, of course I should feel compelled to follow it, notwithstanding its authority was repudiated by the court of appeals of New York, (SWinbach v. Insurance 00.,54 N. Y. 90,) ahdhas been gravely doubted by other courts. See Stout v. Insurance (h., 12 Fed. Rep. 554. If there had been a special provision in the written portion of the policy, permitting certain hazardol1s articles to be kept, we should have held, following this case, that there was an implied prohibition of other hazardous articles, upon the familiar principle, fflPr888io unius 68t exclusW air terius; But we think that the undisputed testimony that fire-works were ,kept as an ordinary portion of a stock of confectionery and ·toys was -clearly a d m i s s i b l e . ' . 3. There, was no error in the instruction that there was no testimony .connect.ing· the plaintiff with the burning of the property. The only i upon this point was that there was a social gathering in the atore upon: the evening before the fire; that the plaintiff and her husband 'did:not 1eavetheplace until 3 o'clock in the morning; that the husband closed: the stdre for the night, took the key with him, and that they went 'dil'ectly:tditheir house. The fire broke 'out a little after 6 in the morning;, 'in! thel basement. Thee\'idence was clear tbat some one had enteredtbe'building, and had set the property on fire, and there was no evidence tbatthe building bad been broken into, or that· anyone but tbe plaintiff's husband had the ;key to the outer door. The jury were instructed that, although there was evidence sufficient td be submitted to them that th!3 husband had burned the property, it wasillot material in this case,'asthere was no evidence to connect the plaintiff withit,-'to show that it was done with her assent or connivance; and that plaintiff would nat be affected by the fraudulent burning ofthe property by her husband. 'Whether he set the fire before he left the building, orreturned there: after having gone to his house, was immaterial, without some evidellce connecting her with the arson. While the facts were such as to excite a 'grave suspicion of the wife's connivance, they were not such as tolegallyelititle this defense to be presented to the jury. There can be no question of the. legal proposition that the wife is not chargeable with the fraudulent conduct of her husband, notwithstanding he may have been her agent in the management of the property and the conduct of her business. 4. There was no error in ruling out the question to the witness Plinsky, whether he was not out upon bail charged with an assault with intent to murder. Whether such a question should be permitted or 'not we think was in the discretion of the court, and its exclusion cannot be claimed as error. The motion for a new trial must be denied.
WELLS, FARGO & CO. V. OREGON BY. & NAV.OO.
61
WELLS, FARGO
& Co.
'110 OREGON
Ri'. &
NAV.
(Ot''l'cuit Court. N. D. Cqlijornia.
AugustS.1887.)
Where a shipper attaches his bill of lading to a draft upon the consignee, he thereby expresses his intentio,n to deliver the goo,ds upon payment of SUCh, draft, and to retain control of them until such payment, and the carrier who, under such circumstances, delivers them while in transit to the shipper, is liable to the consignee whq has duly taken up the draft. DAMAGEs-ExPENsE INCURItED rN PURSUIT OF PROPERTY-EVIDENOE.
DISPONENDI-LIA1ULITY OF CARRIER FOR MISDEl.IVERY.
2.
, muder Civil Code Cftl. § 3836, that, in an action brought by a con· signee against a carrier for wrongfully delivering up goods in transit to a party other than the consignee, the measure of damages shall be the highest market value of, the property at any time between the conversion and the verdict, without interest; and a fair compensaUonfor the time and money properly expended in of the property, it is incumbent on ihe plaintiff to show the, Circumstances tinder which the expenditure claimed by him to 'incnrred'was :m.ade;so that the court can decide whether it was proper.
Page &tee
for plaintiffs. Wilson and Messick
Maxwell, for defenqant.
Ross, J. From August, 1885, to some time in the early partof1886, the ;firni of 'Mills & Co. and one William Jones were dealing largely in wheat; Mills & Co. being located in San Francisco, California, and Jones at Walla. Walla, Washington Territory. During the same period. the plaintiffs berein were carrying on business as bankers in San Francisco, and defendant was engaged in the transportation of passengers and freight between various points in Oregc}ll, Washington Territory, ,and California. At different times between the dates mentioned Jones sold wheat to Mills & Co. In doing so, the method adopted-except in one instance, which oocurred early in their dealings, and which it is not importantto notice further-.--was this: The respective parties wonld,by telegram or letter, agree upon a sale, whereupon Jones would ship the wheat on the defendant's cars, taking therefor a carrier's receipt, reciting defendant's agreement to deliver the merchandise to consignee or owner; Mills & Co. being therein designated as consignees. Jones would then draw' a draft on Mills & Co. in the approximate amount of the purchase price,---notexceeding, however, according to the agreement of the parties; 95 per cent. thereof, in order to guard against shortage or damaged wheat; attach to it the carrier's receipt; discount the same with Baker & Boyer, bankers of Walla Walla, who would send the draft, with annexed receipt, to the First National Bank ofSan Francisco for acceptance and collection. That bank, on receipt of the po.pers,would notify Mills & 00. of their arrival; and Mills & 00. would accept the draft, and, on maturity, pay it with their check on Wells, Fargo & Co., duly certified j the check being certified and paid by Wells, Fargo & Co. pursuant to an agreement between them and Mills & Co. that they would advance the money upon the earril;lr'8 receipt, which, in each ,instance, was indorsed and by