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but block 9 is not mentioned among such blocks and lots. The abstract refers to a deed conveying to appellee the premises described in the bill, but we can find no such deed in the record.

There is another respect in which either the contract is uncertain, or in which its enforcement might be unfair. It is not altogether clear whether the location of the works at Pacific Junction, for which the commission was to be allowed, was to be a permanent location, or a location during the lease. The Maxwell Company did not buy the building for $10,000, nor have they built on 200 feet square of ground donated to them by appellee. They did nothing but take a lease for two years. Appellant says the lease entitles him to his commission, while appellee claims, in his answer, that the agreement contemplated a permanent locacation of the works, and that they are not permanently located. The testimony of Maxwell shows that the manufacture of white lead at Pacific Junction is as yet an experiment, and that the question of a permanent location will not be decided until the lease ends. Appellee's construction would seem to be the correct one, as the object of the location was to give value to the land, which could not be effected by a mere temporary lease. If the commission was to be allowed for a permanent location, then inasmuch as appellant's own evidence proves that a permanent location there has not yet been accomplished, it would be unfair to enforce the contract. Race v. Weston, 86 Ill. 91; Tamm v. Lavalle, 92 id. 263. The decree of the Superior Court is affirmed.

MUNICIPAL CORPORATIONS-NEGLIGENCE -LOOSE BRICKS IN SIDEWALK — CONTRIBUTORY NEGLIGENCE.

SUPREME COURT OF INDIANA, OCT. 13, 1887.

TOWN OF GOSPORT V. EVANS.

The mere fact that bricks in a city pavement have become loose and displaced by the action of the elements, so that persons may stumble or be otherwise inconvenienced in passing, does not necessarily make the municipality liable, so long as the defect is not of itself dangerous, and can be readily discovered and easily avoided by persons using due care. One having knowledge of a defect in a sidewalk may not recover for an injury therefrom, where he was under no compulsion to walk upon the defective part, and might easily have avoided all danger by merely stepping around it.

APPEAL from Circuit Court, Owen county.

Geo. W. Grubbs, John C. Robinson and I. H. Fowler, for appellant.

Beem & Hickam, for appellee.

MITCHELL, J. The town of Gosport prosecutes this appeal from a judgment rendered by the Owen Circuit Court, in favor of Lydia E. Evans, against the appellant, for $1,000, that being the amount awarded the plaintiff by a jury, in an action for damages for injuries sustained from a fall upon an alleged defective and dangerous sidewalk. The argument for a reversal of the judgment is predicated mainly upon two propositions. It is contended (1) that there was no evidence which tended to show such a defect in the sidewalk, at the place where the plaintiff fell, as rendered the town liable to the imputation of actionable negligence; (2) that there was no evidence tending to show that the plaintiff was in the exercise of due care at the time she sustained the injury.

Concerning the first point, it is only necessary to

say the evidence does not make it entirely clear that the town was guilty of such negligence in respect to the sidewalk in question, considering its condition at the time of the injury complained of, as would have sustained a recovery, even if the plaintiff had been without fault. While a municipal corporation is required to exercise vigilance in keeping its streets and sidewalks in a reasonably safe condition for public travel, by night as well as by day, it is by no means an insurer against accidents, nor can it be expected to maintain the surface of its sidewalks free from all inequalities, and from every possible obstruction to more convenient travel. A contrary rule would or might burden municipal corporations beyond endurance. That a pavement may have become worn from use, or that bricks therein may have become loose or displaced by the action of the elements, so that persons are liable to stumble, or be otherwise inconvenienced in passing, does not necessarily involve the municipality in liability, so long as the defect can be readily discovered and easily avoided by persons exercising due care, or provided the defect be of such a nature as not of itself to be dangerous to persons so using the walk. City of Indianapolis v. Cook, 99 Ind. 10; City of Qaincy v. Barker, 81 Ill. 300; City of Richmond v. Courtney, 32 Grat. 792; City of Chicago v. Bixby, 84 Ill. 82; City of Aurora v. Pulfer, 56 Ill. 270. Adopting the language of the court in Hubbard v. City of Concord, 35 N. H. 52; 69 Am. Dec. 520, to the case in hand: Towns are not required to make their sidewalks perfect, or to correspond with any given standard. In each case the sidewalk is to be pronounced sufficient or insufficient according as it is or is not reasonably safe and convenient for the travel passing upon it, under the particular circumstances which exist in connection with that particular case. Accepting as true the evidence most favorable to the plaintiff below, it appears that some of the bricks in a pavement had been displaced and removed, leaving a depression of from two and a half to six inches in depth, covering an area of about three by four feet in the surface of the walk. The authorities had notice of the condition of the walk, and had directed the owner of the abutting lot to repair the pavement. At the time of the injury complained of all the streets and sidewalks in the town were covered with snow, sleet and ice, rendering them difficult and dangerous for foot-travellers to pass over. The depression above described had become partly, and some of the witnesses say completely filled with frozen snow, sleet and ice, presenting a surface not substantially different from that around it, except that it was perhaps somewhat lower. There was evidence tending to show that some of the bricks which had become loose and displaced were frozen fast in the snow and ice in and about the depression in the pavement, and that some of these projected some inches above the icy surface. The plaintiff, who was well acquainted with the defect in the walk, and who had it in mind at the time, while passing over the place in the night-time, struck her foot against one of the projecting bricks, which caused her to fall upon the icy pavement.

Since therefore it does not appear that the defective condition of the sidewalk occasioned an accumulation of snow and ice at that point, or made the surface of the walk substantially different there from what it was elsewhere, we are not prepared to say that as respects its condition when the injury complained of was suffered, the city was remiss in its duty for not having removed the projecting brick which caused the plaintiff to fall. The fall was not occasioned by the plaintiff stepping in a hole, or slipping on ice accumu lated therein, but by striking her foot against a brick which projected above the surface of the icy walk. If we should assume however that the walk was defec

tive and dangerous at the time of the injury, and that the town neglected its duty in not repairing it, principles too firmly established to be departed from require that the judgment should be reversed nevertheless. The plaintiff was guilty of contributory negligence, and it is too well settled to require reference to authority that contributory negligence prevents a recovery in an action like this. It is disclosed in the evidence given on the stand by the plaintiff herself that she was returning home from church after the evening service in company with and by the side of another lady. She had passed over the sidewalk in question frequently. Quoting her own language, as we find it repeated again and again in the record of her testimony, she said: "I knew it was a bad place, but thought I could pass it. Had passed it before. * ** I put on old shoes, and socks over them. I put them on that night to go through this place safely, and for all other bad places. * * I knew it was a bad place, but thought I had prepared for it. Knew just where it was. I could tell it as well after night as in day-time. * ** * I could see the place when I came up; knew it was a bad, dangerous place, but thought I would get through safe. I stepped carefully but stumbled and fell. ** *Nothing to prevent me from walking next to the fence, except that Mrs. O'Mearis was walking there. Don't know why I did not let go her arm and walk there. Had passed there often going to and from church." Thus it appears that a person of mature years, and in the possession of all her faculties, deliberately walked into a place which, upon her hypothesis of the case, was one of known danger, and which she could have avoided by simply disengaging herself from, and following in the footsteps of her friend.

66

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The statement of Lord Ellenborough in Butterfield v. Forrester, 11 East, 60, that "a party may not cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right," was hardly less applicable to the case in which it was made than to the one under consideration. "Two things must concur," said that learned judge, to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." This rule, stated in different language, has been consistently and uniformly declared and adhered to by appellate courts in every common-law jurisdiction. Beach Contrib. Neg., §§ 71-77; Bruker v. Town of Covington, 69 Ind. 33; President, etc., v. Dusouchett, 2 id. 586; Riest v. City of Goshen, 42 id. 329; Turnpike Co. v. Baldwin, 57 id. 86. One who knows of a dangerous obstruction in a street or sidewalk, and yet attempts to pass it, when on account of darkness or other hindering causes he cannot see so as to avoid it, takes the risk upon himself. For a much greater reason does he take the risk upon himself, if seeing an obstruction and knowing its dangerous character, he deliberately goes into or upon it when he was under no compulsion to go, or might have avoided it by going around. Thompson v. Railroad Co., 54 Ind. 197; Railroad Co. v. Schmidt, 81 id. 264; King v. Thompson, 87 Penn. St. 365; Railroad Co. v. Brannagan, 75 Ind. 490; Erie v. Magill, 101 Penn. St. 616; Wilson v. City of Charlestown, 8 Allen, 137: Durkin v. Troy, 61 Barb. 437; City of Centralia v. Krouse, 64 Ill. 19.

We do not question the doctrine of the cases which hold that because one has knowledge that a highway or sidewalk is out of repair, or even dangerous, he is not therefore bound to forego travel upon such highway or sidewalk. City of Huntington v. Breen, 77 Ind. 30; Wilson v. Trafalgar, etc., 83 id. 326; Wilson v. Trafalgar, etc., id. 287; Nave v. Flack, 90 id. 212; City

of South Bend v. Hardy, 98 id. 586; Town of Albion v. Hetrick, 90 id. 546; Turner v. Buchanan, 82 id. 147.

The doctrine to be extracted from these cases is that although a sidewalk or highway may be in an apparently defective or dangerous condition, yet a person with knowledge of the defect or danger is not on that account obliged to abandon travel upon the highway, if by the exercise of care proportioned to the known danger, he may reasonably expect to shun or avoid the defect. If the defect be one which does not render the way wholly impassable, and which can only result injuriously to the traveller, if not shunned, if there be an apparently safe way of passage, without going into the obvious defect, the traveller is not to be held to a rigorous account if he is deceived or misled notwithstanding his effort to avoid the danger. The authorities however lend no countenance to the notion that a person having knowledge of an obvious defect, or of a place in a highway which naturally suggests to a person of common understanding that it is dangerous, may nevertheless voluutarily cast himself into or upon the defect, upon the theory that he is not obliged to forego travel upon the highway. In Horton v. Ipswich, 12 Cush. 488, the court said: "The real point is not whether the plaintiff was chargeable with any negligence in making his way over the road, after he had entered upon it, but whether he knew or had reason to believe that the road was dangerous when he entered on it, or before he reached any dangerous place. If so, he could not, in the exercise of ordinary prudence, proceed and take his chance, and if he should actually sustain damages, look to the town for indemnity." Parkhill v. Town of Brighton, 61 Iowa, "Where there is danger, and the peril is known, whoever encounters it voluntarily and unnecessarily cannot be regarded as exercising ordinary prudence, and therefore does so at his own risk." Corlett v. City of Leavenworth, 27 Kan. 673; Schaefler v. City of Sandusky, 33 Ohio St. 246. If the defect in the pavement which the plaintiff voluntarily encountered, presented an obstruction, or was of such a character that the town of Gosport was bound to take notice of it, so that it was guilty of negligence in not repairing it, the conclusion follows necessarily that the plaintiff, having full and equal knowledge of its character, was guilty of contributory negligence in venturing upon it, no matter how carefully she may have prepared for the encounter, nor with how much care she went upon it. Her duty was to avoid the obstruction, or venture upon it at her own risk. Durkin v. Troy, supra.

103.

These conclusions lead to a reversal of the judgment. Judgment reversed, with costs.

NEW YORK COURT OF APPEALS ABSTRACT.

BOUNTY-COUNTY INDEBTEDNESS -EXTENSION OF DEBT. At the close of the civil war, Saratoga county, New York, was largely indebted on account of its county and town bounty debts, incurred during the war pursuant to various resolutions of the board of supervisors of said county for the payment of bounties to volunteers. These debts were of the nature of short loans, and to provide for their payment, taxes were levied each year, and the treasurer was authorized by the said board to procure an extension of time of payment of such portion of said debts as the several towns owing the same might desire extended; which authority was given by resolution of said board each year until 1875. The treasurer assumed to exercise the authority given him to extend the debts by borrowing money to pay maturing obligations, and giving notes of the county therefor, signed by himself as treasurer, and in other cases by giving new obliga

tions to creditors and taking up the old notes or bonds. Held, that by virtue of Laws N. Y. 1864, chaps. 8, 72, the county board was vested with power to borrow money and renew its obligations from time to time, for the purpose of paying or continuing its indebtedness incurred in the payment of bounties, and its previous obligations with respect thereto were legalized, and that the power assumed and exercised by the treasurer, pursuant to the resolutions of the board, was upheld by said acts. (2) The treasurer of Saratoga county, New York, had been empowered by the resolutions of the board of supervisors of said county to procure an extension of time of the "town bounty debt," which was done by the giving of new notes or bonds, and taking up the old obligations, or by making new loans. Held, that though there was no such debt, strictly speaking, yet the county was not released from its liability for such renewals, as it was well known what debt was intended by that description, it being the one usually employed by the board. (3) The board of supervisors of Saratoga county, New York, authorized the treasurer of said county "to procure an extension of the time of payment of the town bounty debt, as the several towns owing the same might desire," and to that end he was authorized to borrow money and give notes therefor; but the amount was restricted to that necessary to extend such part of the said debt as he was requested to extend, and the authority to give new obligations was limited to the amount of the debt actually extended. The proof showed that the treasurer had fraudulently given notes largely in excess of the amount necessary to extend the said debt as requested. The plaintiff brought suit on two of the notes given in renewal of an old obligation. Held, that the authority of the treasurer to borrow money and give new notes or bonds having been proven, it was incumbent upon the defendant to show that the transaction with plaintiff was in this particular instance outside of or in excess of the treasurer's actual authority, in order to be relieved of its obligation. (4) The resolutions of the board of supervisors of Saratoga county, New York, authorizing the county treasurer "to procure an extension of the time of payment of such portion of the town bounty debt as the several towns owing the same may desire extended," granted authority to renew the said debt as represented by the notes, bonds and obligations of said county, and gave no authority to create new debts, or to allow a doubtful or disputed claim. (5) The bonds and notes of a county issued for loans authorized by law are not open accounts for county charges, which must be presented to the board for audit. Oct. 4, 1887. Parker v. Board of Supervisors of Saratoga Co. Opinion by Andrews, J.

CRIMINAL LAW-FALSE PRETENSES-LARCENY-INDICTMENT.-The defendant was indicted for the crime *

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of larceny, as follows: "* * certain of the goods," etc., "of then and there being found, unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided." Held, that the indictment, though sufficient to maintain a conviction of larceny as defined at common law, and by 2 Rev. Stat. N. Y. p. 679, § 63; id., p. 690, § 1, was insufficient to maintain a conviction under Penal Code N. Y., § 528, which declares that one obtaining property from the possession of the true owner by color or aid of false representations, or a false token or writing, is guilty of larceny, by reason of not stating the act constituting the crime under this law, as required by Code Crim. Proc. N. Y., § 275. Under the former system a substantial distinction was recognized between the crimes of larceny (2 Rev. Stat., p. 679. § 63; id., p. 690, § 1) and false pretenses (2 Rev. Stat., p. 677, §§ 53, 54). In order

to constitute larceny, there must have been a taking of personal property against the will of the owner. The other offense could not be confounded with it. In either case the property may have been obtained by artifice or fraud; but if in one the owner intended to part with his property absolutely, and to convey it to the defendant, and in the other intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was therefore uniformly held, that if a person through the fraudulent representations of another, delivered to him a chattel, intending to pass the property in it, the latter could not be indicted for larceny, but only for obtaining the chattel under false pretenses. In Ross v. People, 5 Hill, 294, a conviction for larceny was reversed because the goods were delivered by the owner with the intention to sell them, and so having obtained them under a purchase, although by fraud and false pretenses, the purchaser could not be convicted of larceny. The distinction was adhered to, although with reluctance, and in deference only to earlier cases. The doctrine then applied was laid down, before the adoption of the Revised Statutes, in Mowrey v. Walsh, 8 Cow. 238, and governed the courts of this State until the adoption of the Penal Code in 1881. Bassett v. Spofford, 45 N. Y. 388; Zink v. People, 7 id. 114; Thorne v. Turck, 94 id. 90; People v. Morse, 99 id. 662. And it is obvious that if these decisions apply, neither the opening of the district attorney, nor the evidence put in by him, gave even color of support to the indictment, and it should not have been sustained. The indictment was for larceny as defined at common law, but concerning which, as above interpreted, no evidence was given; that crime therefore being left unproven, while the conviction was had upon proof of false representations, the making of which was not disclosed by the indictment. As to the act charged there was no proof: as to the act proved, no allegations. But the Penal Code recognized that the moral guilt of the two offenses was the same, and swept away the theory by which the courts had felt constrained to distinguish them in principle. By it larceny is so treated (ch. 4) as to include not only that offense as defined at common law and by the Revised Statutes (2 Rev. Stat., 678, 690), but also embezzlement, obtaining property by false pretenses, and felonious breach of trust. There are at least four distinct and separate acts or ways by which a person may commit or be guilty of larceny. The first embraced larceny as described at common law and under the Revised Statutes, supra; the second embraces the offense formerly known as obtaining property by false representations. In substance, the defendant has been indicted for larceny in doing the first act, and has been convicted of larceny in doing the second. From what has already been said, and the cases cited, it appears that under the former system concerning crimes and punishments prevailing in this State the conviction could not be sustained. The variance between the indictment and proof would be fatal. The respondent relies however upon the system introduced by the Code of Criminal Procedure. Laws 1881, ch. 442; Laws 1882, ch. 360. The statute abolishes all the forms of pleading before existing in criminal actions, and enacts that the forms of pleading and the rules by which their sufficiency shall be determined are those prescribed therein. Section 273. It declares that on the part of the people, the first pleading is the indictment (§ 274), and defines this pleading as an accusation in writing, charging a person with a crime (§ 254). It must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition. Section 275. The indictment therefore must charge

the crime, and it must also state the act constituting the crime. The omission of either of these things would necessarily be fatal to the indictment. If there was no accusation of a crime, the paper, however formal in other respects, would not be an indictment, and so there would be no criminal action. If it contained no statement of the act constituting the crime, there would be no description of the offense, and neither an acquittal nor a conviction would enable the defendant to withstand a further prosecution for the same crime. Moreover the plain words of the statute as well as its object, would be disregarded; for the manifest intention of the Legislature in requiring the indictment to state the act constituting the crime was, among other things, that the accused should learn from it what he was called upon to defend. The form of the indictment given in the Code (§ 276) leads to the same conclusion. It provides in one sentence for a statement of the name of the crime, as murder, larceny, etc., whereof the grand jury accuse the defendant, or if it be a misdemeanor having no general name, such as libel, assault, etc., requires an insertion of a brief description of it as given by statute, and then adds, "here set forth the act charged as an offense." It provides also that "the indictment must charge but one crime, and in one form, except where it may be committed by different means (§ 278), in which case the crime may be charged in several counts to have been committed by different means (§ 279), and declares "the indictment sufficient if it can be understood therefrom that the act or omission charged as the crime is plainly and concisely set forth." We see therefore that the indictment must name the crime, and state the act constituting it; and if either one of several acts constitute the crime, the several acts must be separately stated in different counts. Can the indictment before us be supported as complying with these provisions? It consists of one count. It accuses the defendant of the crime of grand larceny in the first degree, and then states with sufficient conciseness an act constituting the crime, by saying the defendant "unlawfully and feloniously did steal, take and carry away" the property therein described. These words are to be construed in their usual acceptation in common language, except such as are defined by law, and those are to be construed according to their legal meaning. Section 282. Undoubtedly under the Penal Code, the offense or crime charged is sufficiently made out by these averments. But the act described was not proven. There was neither expectation nor intention on the part of the plaintiff to prove it. This we know from the opening of the district attorney. The case he presented and the evidence he offered, all tended to show that the defendant did not commit the act charged in the indictment. but did commit the act described in the second alternative of the statute, viz., "obtaining property from the possession of the true owner by color or aid of false representations or pretense, or a false token or writing."

And such is the only claim now made by the learned district attorney. He says in his printed points given to us as an answer to the appeal: "On the trial it was proven that on the third day of February, 1885, the defendant obtained from Ilus F. Carter a quantity of carpets of the value of about $700; that he obtained such carpets by means of false and fraudulent representations." The accused could not fail to understand from the indictment that he was charged with the crime of grand larceny. In that respect the Code was complied with. It stated also a particular act as constituting the crime. In that respect also the Code was complied with. The difficulty is that the act stated was not proven, and that the act proven was not stated. The objection that the proof varied from the crime charged in the in

dictment was therefore well taken. It related to substance, and not form, and pointed to an imperfection which tended to prejudice the substantial rights of the defendant upon the merits. It must prevail. The learned counsel for the respondent cites People v. Willett, 102 N. Y. 251, as substantially settling in his favor the present contention. In that case a very different question was involved-the sufficiency of an indictment upon demurrer. Here is a question of variance between the indictment and the proof. So far as the first involved the crime of larceny it was well charged; and so it is in the case under consideration, but it remains unproven. The important difference between the former law and the present, so far as this case is concerned, is that the court is no longer called upon to decide whether an offense is larceny, embezzlement or false pretenses; nor is justice liable to be defeated by too nice a discrimination. Each of these acts is larceny. But the general principle of pleading has not been substantially changed. Under either system an offense consists of certain acts done or omitted under certain circumstances; and under neither is any indictment sufficient which does not accurately and clearly allege all the ingredients of which the offense is composed, so as to bring the accured within the true meaning and intent of the statute defining the offense. Under the former, this end was secured by rules formulated and applied by the courts through a long series of decisions; under the latter it is made imperative by the provisions of the statute. In the case at bar the defendant was left uninformed of the real act committed by him, and subjected to the charge of larceny for an act which he did not perform. The variance is fatal to the proceeding. Oct. 4, 1887. People v. Dumar. Opinion by Danforth, J.

INSURANCE-WHAT CAPABLE OF INSURANCE ON ROYALTY CONTRACT-DAMAGES EVIDENCE.-(1)Plaintiff licensed Ellis & Co. to use a certain patent in consideration of specified royalties to be paid for such

use.

Defendant insured plaintiff against the loss of such royalties from damages by fire to the premises of Ellis & Co. Held, that the royalties were capable of supporting an insurance, and that the policy of insurance was not a wager policy. The insurance which forms the subject of this litigation was of an unusual character, and presents a question for the solution of which we have no admitted precedent. It is argued that the policy is a wager policy. It is quite true, that beyond the guaranteed minimum they were contingent, and dependent upon the condition of the market, or even possibly upon the will or choice of Ellis & Co. in the reasonable control of their business. That firm was not bound to pay except upon oil manufactured and sold; and might limit both, or be compelled by the market to limit both, to a production yielding no royalties beyond the guaranteed minimum; and so it is said, the plaintiff had no fixed or definite right to royalties beyond such minimum, no assurance of their existence, no power to compel or demand their being, and could not be said to have lost what it neither possessed nor had the absolute right to possess. But a further fact in the case establishes more definitely the plaintiff's risk and loss, and the direct causative connection between that loss and the fire which injured the works. The license held by Ellis & Co. to use the plaintiff's patent was an exclusive one, and the earning power of that patent was thus narrowed to the business of Ellis & Co. If the latter did not continue their business, and so preserve the fruitfulness of the patent by reason of some fault of their own, or from a cause for which they were reponsible, the exclusive character of the license ended and the patentees were at liberty to transfer the right to others, and thus secure the profits of their inven

tion. But if the business of Ellis & Co. was lessened or restricted because of a fire which should destroy or impair their works, the exclusive right given them was to continue; the patentees could not license others, and must necessarily bear the loss of their diminished royalties. This was the one business risk involved in their contract. Against all others they could provide, but this one they were compelled to bear by the terms of their agreement. Against that risk they insured. It had a direct and necessary connection with the safety of the structures burned. A fire destroying them destroyed the royalties pro tanto, became the efficient cause of their loss, and so was established the needed connection between the premises insured and the royalties dependent upon their safety, and measuring the loss resulting from their destruction. The policy was therefore not a mere wager, and the royalties could be protected by an insurance against the fire risk which threatened them. The authorities in this State go far enough in their general principles to cover the case in hand. Herkimer v. Rice, 27 N. Y. 163; Insurance Co. v. Allen, 43 id. 389; Rohrbach v. Insurance Co., 62 id. 47. They decide that an interest legal or equitable in the property burned is not necessary to support an insurance upon it; that it is enough if the assured is so situated as to be liable to loss if it be destroyed by peril insured against it; that such an interest in property connected with its safety and situation as will cause the insured to sustain a direct loss from its destruction is an insurable interest; that if there be a right in or against the property which some court will enforce upon the property, a right so closely connected with it, and so much dependent for value upon the continued existence of it alone as that a loss of the property will cause pecuniary damage to the holder of the right against it, he has an insurable interest. The plaintiff brought its case within these principles. A loss, measured by the diminution of its royalties, was the inevitable result to it of a fire in the works of Ellis & Co. It could not substitute a new licensee, and must await the repairs necessary to a renewal of the business. By its contract it became so situated relative to the buildings insured that it had a direct pecuniary interest in their safety from accidental fire. That interest it could, as it did, insure. (2) Plaintiff was paid certain royalties by Ellis & Co. for the use of a patent, which royalties were insured by defendant, under the following agreement: "Whereas Ellis & Co., by virtue of an agreement with the assured, are bound to pay to them royalties for the privilege of using their patent, which royalties are guaranteed to amount to $250 a month, now therefore the conditions of this insurance are, that in case the premises occupied by Ellis & Co. shall be damaged by fire so as to cause a diminution of said royalties, this company will make good to the insured the amount of such diminution during the restoration of said premises to their producing capacity immediately preceding said fire," etc. Held, that the proper construction of the policy was that all the royalties payable under the contract between plaintiff and Ellis & Co. were insured, and not merely the guaranteed minimum of $250 per month. (3) In the action on the above policy the loss to plaintiff was measured by the amount of royalties paid for two months immediately preceding the fire, during the time the works were being restored, and for some months thereafter. Held, that this was a proper mode of ascertaining the loss. (4) Under agreement, Ellis & Co. were to pay plaintiff certain royalties for the use of its patent, which royalties were insured by defendant. Held, that the agreement between plaintiff and Ellis & Co. could be introduced in evidence.in an action on the policy of insurance. Oct. 4, 1887. Na

tional Filtering Oil Co. v. Citizens' Ins. Co. of Missouri. Opinion by Finch, J.

FIRE FORFEITURE INCREASE OF RISK.A policy of insurance contained the following provisions: "The working of carpenters, roofers, gasfitters, plumbers and other mechanics in building, altering or repairing any building or buildings covered by this policy will cause a forfeiture of all claim under this written policy, without the written consent of this company indorsed thereon." It also provided that the policy should be void "if the risk be increased by any means within the control of the assured." The evidence showed that at the time of the insurance the building was occupied as a grocery store by a tenant of the insured, who subsequently executed a lease of the building to other tenants, who intended using it for the purpose of carrying on the business of drying fruit therein. The lease provided that they should have the privilege of putting the machinery needed for their business into the building. This required the removal of large portions of two floors and the roof, and the introduction therein of two flues constructed of inflammable materials, and extending through the entire height of the structure. Held, to be a clear violation of the conditions of the contract. Certain conditions are very generally regarded by underwriters as largely increasing the hazards of insurance, and they, unless corresponding premiums are paid for the extra risks, are usually intended to be excluded from the obligation of the policy. Such are the conditions in reference to unoccupied houses, changes in the occupation from one kind of business to another more hazardous, the use of inflammable substances in buildings, and their occupation by carpenters, roofers, etc., for the purpose of making changes and alterations. These conditions, when plainly expressed in a policy, are binding upon the parties, and should be enforced by courts, if the evidence brings the case clearly within their meaning and intent. It tends to bring the law itself into disrepute when by astute and subtle distinctions a plain case is attempted to be taken without the operation of a clear, reasonable and material obligation of the contract. There can be no reasonable question but that the evidence here showed a clear and deliberate attempt to change the character of the occupation of the insured building from a comparatively safe to a hazardous one, and a substantial alteration of the structure by carpenters. These alterations required the removal of large portions of two floors and the roof, and the introduction therein of two flues constructed of inflammable materials, and extending through the entire height of the structure, affording every means for the spread of conflagration, and constituting a large increase of combustible material. The case is brought clearly within the spirit as well as the letter of the contract, and if it does not show a violation of the conditions, we can conceive of no situation which would have effected the result. In case there had been a submission of the facts to the jury, and it had found that carpenters were not engaged in making alterations of this building within the meaning of the policy, it would have been the clear duty of the court to have set aside the verdict. Courts are under no obligation to yield their assent to verdicts which deuy signification to language, or violate the plain meaning and intent of an unambiguous contract. Oct. 4, 1887. Mack v. Rochester German Ins. Co. Opinion by Ruger, C. J.

JUDGMENT-RES ADJUDICATA-EVIDENCE-PAROLPARTIES TO CONTRACT.-In a suit brought by plaintiffs for amount due from defendants under a charterparty, the defense was breach of covenant of sea

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