St. Paul Fire & Marine Ins. Co. v. Bachmann
285 U.S. 112 (1932)

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U.S. Supreme Court

St. Paul Fire & Marine Ins. Co. v. Bachmann, 285 U.S. 112 (1932)

St. Paul Fire & Marine Ins. Co. v. Bachmann

No. 311

Argued January 12, 1932

Decided February 23, 1932

285 U.S. 112

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus

A fire insurance policy contained a warranty exempting the insurer from liability for loss occurring while the hazard was increased by any means "within the control or knowledge of the insured," and another warranty exempting the insurer if loss occurred while there were kept on the premises certain prohibited articles, including gasoline. A rider altered this prohibition to the extent of permitting gasoline to be kept and used for the purpose of bottling automobile oils "or for other mercantile purposes not more hazardous." Fire occurred during occupancy by a tenant engaged in the illegal manufacture of intoxicating liquor who kept on the premises a large quantity of gasoline for use in that connection.

Held:

1. A determination of the hazard involved was essential to maintaining the defense under either warranty. P. 285 U. S. 116.

Page 285 U. S. 113

2. The increase-of-hazard warranty is not violated unless there is increase of hazard within the knowledge and control of the insured; the prohibited articles warranty may be violated irrespective of the knowledge and control of the insured. P. 285 U. S. 116.

3. Whether the business of operating moonshine stills was or was not more hazardous than that of bottling automobile oils was a question of fact for the jury. P. 285 U. S. 117.

4. If the illicit business was more hazardous, the prohibited articles warranty was violated. Id.

5. An allegation in a specification of defense under the prohibited articles warranty, charging the insured with knowledge and control, is to be regarded as surplusage. Id.

6. The burden of proof was upon the insurer to show that the occupancy was not one to which the gasoline permit extended. Id.

7. The court could not take judicial notice that the operation of the stills was more hazardous than bottling automobile oils or say that it was not a mercantile purpose. P. 285 U. S. 118.

8. The defendant's failure to ask proper instructions does not cure the error in instructions which were given, and to which exceptions were taken. Id.

49 F.2d 158 reversed.

Certiorari, 284 U.S. 605, to review a judgment affirming a judgment against the insurance company in an action upon a policy of fire insurance.

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

This action to recover on a policy of fire insurance was brought in the federal court for Northern West Virginia by Sophia C. Bachmann, a citizen of that state, against

Page 285 U. S. 114

the St. Paul Fire & Marine Insurance Company, a Minnesota corporation. The parties stipulated that the plaintiff was entitled to recover

"unless the policy had been forfeited and nullified by the alleged violations as set forth in defendant's Specifications for Defense Nos. 1 and 2 filed in this case."

The first specification recited the increase of hazard warranty:

"Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage occurring (b) while the hazard is increased by any means within the control or knowledge of the insured;"

and alleged that, by means "within the knowledge and control of the plaintiff and her agent or agents" the fire hazard had been increased. The second specification of defense recited the prohibited articles warranty:

"Unless otherwise provided by agreement in writing added hereto, this Company shall not be liable for loss or damage occurring (d) while . . . there is kept, used or allowed on the described premises . . . gasoline . . . ;"

and alleged that,

"at the time of the fire complained of, and prior thereto, large quantities of gasoline were being kept . . . upon and about the insured premises, all of which was well known to the plaintiff and her agent or agents, and was in violation of the foregoing condition and warranty."

To each defense, the plaintiff replied that the warranty recited had been modified by a rider added to the policy, and also that, prior to the fire she had no knowledge or control, as alleged, of the circumstances relied upon as showing breach of the warranty. The rider set forth in the reply altered the occupancy clause of the policy, which had originally described the insured building as "occupied as Produce Store," so that it read, "occupied for bottling automobile oils, offices, and other mercantile purposes not more hazardous." Another clause of the policy permitted the insured "for present and other occupancies not more hazardous" "to do such work and

Page 285 U. S. 115

to keep and use such materials as are usual in such occupancies," and a rule of the West Virginia Fire Underwriters' Association (concededly a part of the insurance contract) provides that

"the word 'materials' as used above, includes gasoline and such other materials as are prohibited by the printed conditions of the policy, when kept and used for such purposes as are usual to the occupancies permitted."

Gasoline is used in the business of bottling automobile oils.

The case was tried before a jury. The defendant introduced evidence tending to show that the premises were occupied at the time of the fire by a tenant engaged in the illegal manufacture of intoxicating liquors, and that a large quantity of gasoline was kept on the premises for use in that connection. But it failed in its effort to prove that the plaintiff had knowledge of these facts. The verdict was for the plaintiff, and the judgment entered thereon was affirmed by the Circuit Court of Appeals. 49 F.2d 158. The writ of certiorari was granted because of alleged conflict with decisions of this Court and of the Eighth Circuit Court of Appeals.

The only error assigned here by the insurance company relates to the construction of the prohibited articles warranty, and to the Circuit Court of Appeals' approval of the trial court's instructions with reference thereto. It is contended that, under that warranty, even as modified by the rider, the presence of gasoline in connection with the use of the premises for the illegal manufacture of intoxicating liquors was an absolute bar to liability, regardless of the plaintiff's knowledge or control of the conditions, and that the trial court, in instructing the jury that the defendant must establish the fact of such knowledge and control, confused the requirements of the prohibited articles warranty with those of the increase of hazard warranty, and in effect read the condition against the use of gasoline out of the policy.

Page 285 U. S. 116

In passing upon this contention, the Circuit Court of Appeals said:

"At the time of the inspection by the agent of the insurance company, and the attachment of the rider to the policy, the building was being used for the handling and bottling of automobile oil, and it was shown that gasoline was stored in the building, and that the agent of the insurance company saw that gasoline was being used and stored in the building. It was contended on the trial below that this rider constituted a permit for the handling of gasoline within the building, and that its effect was to remove gasoline from the prohibited articles warranty, and that the quantity of gasoline, if greater than used at the time of the issuance of the permit, brought this question into the increased hazard class. The trial court took this view of the case, and we think properly so. The agent of the insurance company knew that the rider permitted the use of gasoline at least to some extent, and, in order to show that the hazard was increased by a greater use of gasoline, as a defense to the recovery by the insured, the insurance company must, under the terms of the policy, as above discussed, bring such fact 'within the knowledge and control' of the insured or her agent."

In so holding, the court was in error. Because of the terms of the rider, a determination of the hazard involved was essential to maintaining the defense under the prohibited articles warranty, as well as that under the increase of hazard warranty. But the two warranties are distinct. The latter is not violated unless there is increase of hazard within the knowledge and control of the insured. The former may be violated if a tenant keeps the prohibited article on the premises, even if this was done without the knowledge and control of the insured. Liverpool & London Ins. Co. v. Gunther,116 U. S. 113, 116 U. S. 128-129; Gunther v. Liverpool & London & Globe Ins. Co.,134 U. S. 110, 134 U. S. 116. Compare 151 U. S. S. 117

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