Viele v. Germania Insurance Co.

policy; that such risk and hazard was not covered by the policy, and continued to the time of the fire; that plaintiff paid no additional premium on said policy on account of said increased risk, and defendant waived no rights accruing on account of the same; that, contrary to the terms of the policy, plaintiff permitted benzine to be kept upon the premises; whereby plaintiff lost all right to recover under said policy, and it has become void, etc.

The defendant filed an admission that the burden of proof is on defendant, and that without any proof plaintiff would be entitled to judgment on the pleadings.

Plaintiff moved for the consolidation of the cause with three other causes pending in the same court, each upon the same policy, for the same loss, and respectively against the Hanover, Niagara and Republic Insurance companies, or that all four of said causes abide the event of the one first tried, subject to the same exceptions, motions, etc. This motion was based upon the affidavit of plaintiff's agent, to the effect, that all of said actions are brought upon the same policy of insurance to recover for the same loss; that the same defenses are set up in all of them, and the defendants are represented by the same attorneys in each cause; that the defendants have entered into a mutual arrangement for issuing policies of the kind and character of the one upon which the said suits are based, and have a joint agency, representing all of said companies, called the "Underwriters' Agency," under which the policy sued on was issued, and under which all such joint business is conducted, including the settlement and adjustment of losses and settlements of suits, etc.; that said companies have, under such "Underwriters' agency," a general agent for this State, who attends to the defense of said suits, and who has given personal attention to said suits, and that the attorneys of defendants in all of said actions are employed by said agent of

Viele v. Germania Insurance Co.

all of said defendants to defend all of said suits. A like motion was made in each of the other cases, based upon like affidavits. Upon these motions and affidavits, the court ordered, that the other causes abide the event of this cause, and that the same verdict and judgments be entered therein as shall be rendered in this cause, unless defendants should show cause to the contrary, by affidavit, before the conclusion of the trial in this cause. To which defendants respectively excepted.

Before the trial, plaintiff filed an admission to the effect that, after the execution of the policy, and before the loss, the plaintiff, without the consent of defendants in writing on the policy, leased a part of one of the buildings to be used for the manufacture of rustic window shades, and that it was so used and occupied at the time of the loss, and the risk was thereby increased. This admission closes with an averment that plaintiffs will rely upon proving matter in avoidance of the defense therein admitted, which will estop defendants setting up the same. This admission, in the body thereof, sets ont that it is "for the purposes only of the trial of the cause at the present term, and for no other purpose." Defendant moved to strike from the files this admission, and for judgment thereon, and that parts thereof be stricken out. These motions were severally overruled and exceptions taken thereto.

The instructions given and refused are sufficiently referred to in the opinion of the court.

Upon motion of plaintiff, the following question was submitted to the jury, and they were instructed to answer the same as a special finding, viz. :

"Did the defendant, by its agent Verder, with knowledge of all the facts claimed by defendant to constitute breaches of the conditions of the policy sued on, by its conduct and language to the plaintiff, or his agent, recog

Viele v. Germania Insurance Co.

nize and treat said policy and the insurance thereby made, as still continuing and in force, and induce the plaintiff, or his said agent, so to regard it?" To which the jury answered: "Yes."

The defendant asked the following questions to be submitted to the jury for special findings, and they were answered accordingly, viz.:

"1. Was benzine kept on the premises in question, after the policy was made, and without the written consent of defendant, in cans for use?" To which the jury answered: "Yes."

"2. Was any additional consideration paid or agreed to be paid by the plaintiff to the defendant on account of the increase of the risk to the building in question?" Answer: "No."

"3. Was any additional premium paid or agreed to be paid by the plaintiff to the defendant for the privilege of keeping benzine on the said premises after the issuing of the policy?" Answer: "No."

"4. Did the defendant, after the increase of the risk as admitted by the plaintiff, conditionally consent to the continuance of the insurance on the building in question? and, if so, was one of such conditions that a new stove and zinc under it should be put in the room, in said building used as a tobacco factory?" Answer: "Yes."

"5. If such was one of the conditions, was such condition complied with by the plaintiff, before the fire in question?" Answer: "Yes."

"6. Did the defendant, after the increase of the risk as admitted by the plaintiff, conditionally consent to the continuance of the insurance on the building in question? and, if so, was one of such conditions that an iron door should be put in a room occupied by one of the rustic window shade factories, in the fourth story of the building in question?" Answer: "Yes."

Viele v. Germania Insurance Co.

"7. If such was one of the conditions, was it ever complied with by the plaintiff before the fire?" Answer: "No."

The court, upon its own motion, required of the jury answers to the following questions, viz. :

"1. If you answer the first question in relation to keeping benzine on the premises 'yes,' then you will also answer the following questions:

"2. Was benzine a necessary or usual article in the manufacture of rustic window shades?" Answer: "Yes."

"3. Was it kept in small quantities for daily use, or was it kept in large quantities? State the quantities usually kept on hand." Answer: "In small quantities, from one to two gallons."

"4. Did the agent of the insurance company give any directions as to the manner of keeping benzine, and, if so, was it kept as he directed?" Answer: "Yes."

"5. If you answer the seventh and last question submitted by the defendant 'no,' you will then answer the following question: Had said iron door been ordered, and had all reasonable efforts been made to have it put up before the fire?" Answer: "Yes."

Plaintiff moved the court to set aside the special verdict of the jury upon question No. 6, because the finding is contrary to the evidence, and also moved for judgment on the general verdict. Defendant moved the court to set aside the special findings upon questions asked by plaintiff numbered one, two, four and five, and upon question five submitted by defendent, and also the general verdict; because, first, such findings are contrary to the evidence; second, because of errors of law in the instructions of the court; third, the verdict and special findings are contrary to law; fourth, because of error in refusing to submit to the jury other questions requested by defendant; fifth, because of error in refusing certain instructions reVOL. XXVI. — 3

Viele v. Germania Insurance Co.

quested by defendant. The defendant also moved for judgment upon the special findings. The motions of defendant were overruled and exceptions taken thereto. The motion of plaintiff to set aside the special finding was also overruled and exceptions taken, and judgment rendered upon the general verdict against defendant for the sum of $3,421.80.

Plaintiff appeals from the decision of the court upon his motion to set aside the special verdict of the jury in response to question six of defendant.

Defendant appeals from the rulings, orders and final judgment of the court.

Davison & True, James T. Lane and S. B. Paul, counsel for the appellant, filed elaborate printed arguments, from which the following points are condensed.

I. The court erred in the admission of certain testimony offered by plaintiff against the defendant's objections.

The policy provides, that, "if the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied, or the risk be increased by the erection of adjacent buildings, or by any other means whatever within the control of the assured, without the assent of the companies indorsed thereon, *** or if the assured shall keep upon the said premises gunpowder or phosphorus, or petroleum, or rock or earth oils, or benzole, benzine or naptha, or any explosive substance, or shall keep or use upon the said premises camphene, spirits, gas or chemical oils, without written permission on this policy, then and in every such case this policy shall be void.

That is, the very instrument under which plaintiff claims, stipulates in plain, unmistakable terms, that if the