Imperial Fire Insurance Company of London v. Coos County

This was an action of assumpsit upon a $5,000 policy of insurance issued by the plaintiff in error November 21, 1882, insuring the courthouse of the defendant in error, at Lancaster, in the county of Coos, N. H., against loss by fire, for a period of five years from the date of the policy.

The premises insured were a two-story building, having on the first floor the offices of register of deeds and probate, clerk of court, and county commissioners. The court room was on the second floor. At the date of the policy there were two brick vaults,-one, 8 by 13 feet, for the use of the probate office; and the other, 16 by 13 feet, for the use of the offices of the register of deeds and clerk of court,-there being a partition in the center, separating the part used by the register from that used by the clerk.

The fire which destroyed the insured premises occurred about 2 o'clock in the morning of November 4, 1886.

The Policy in suit contains the following: 'Payment in case of loss is upon the following terms and conditions.'

Among the terms and conditions are the following:

'This policy shall be void and of no effect if, without notice to this company and permission therefor in writing indorsed hereon, * * * the premises shall be used or occupied so as to increase the risk, * * * or the risk be increased * * * by any means within the knowledge or control of the assured, * * * or if mechanics are employed in building, altering, or repairing premises named herein, except in dwelling houses, where not exceeding five days in one year are allowed for repairs.'

In August, 1886, the plaintiff, without the written consent of the defendant, and without its knowledge, employed wood carpenters and brick masons, and reconstructed and enlarged the vaults, making that of the office of the register of probate 12 by 13 feet instead of 8 by 13 feet, as it was at the date of the policy, and making those of the offices of the register of deeds and clerk of court 22 by 13 instead of 16 by 13 feet, as at the date of the policy. The foundations were also reconstructed and enlarged to correspond with the enlargement of the vaults. The reconstruction and enlargement of the vaults necessitated the cutting of the floors and ceilings of the respective offices in which they were, so as to extend the vaults.

The time during which these mechanics were employed in the reconstruction and enlargement of the foundations and vaults was about five or six weeks. Some painting was also done incident to the above changes, but the extent did not distinctly appear.

In addition to the foregoing, the plaintiff below also changed the method of heating the offices of the register of probate and clerk of court, placing a hot-water coil in the furnace in the basement, from which ran pipes through the floors, and were attached to radiators in those offices. This work was commenced November 2, and completed about midnight November 3, 1886. No permission to make this change in the method of heating was either obtained or requested, and the defendant had no knowledge of its being done. In the evening of November 3d a fire was built in the furnace, to test the heating apparatus, and heat the radiators, so they might be bronzed, and the fire was left burning at about midnight, when the mechanics and some of the county officers left the building.

From the time work began upon the vaults-early in August until the fire, the papers and records of the offices of the clerk of court and registers of probate and deeds were in the court room, or in the respective offices, unprotected by any safes or vaults.

The expense of the labor and raw material of the foregoing alterations was about $3,000.

The defendant contended that the foregoing alterations, rebuilding, and repairs were extraordinary, and not ordinary, repairs, such as were necessary in the use of the premises insured, and such as might have been contemplated by the parties when the contract was made; and the following request for a ruling was made to the presiding judge, viz.:

'The defendants request the court to rule that the building, altering, and repairing of the premises to the extent of tearing down several partitions, cutting away a portion of the floors in several rooms, tearing down the vault and enlarging and rebuilding it, and by changing the method of heating a portion of its building by putting in piping and radiators for hot water or steam, all at the expense of several thousand dollars, for the labor of mechanics, for raw materials, was a building, altering, or repairing of the premises which increased the risk, and the policy thereby became void.'

The court declined to rule as requested, and the defendant excepted.

Upon the conclusion of the testimony, which proved the foregoing facts, the defendant made the following motion that a verdict be directed, viz.:

'The defendants move that a verdict be directed for them on the ground that there is no evidence competent to be submitted to the jury that the building, altering, and repairing shown by the evidence was not such building, altering, and repairing as avoided the policy.'

The motion was denied by the court, and the defendant excepted.

The defendant requested the court to instruct the jury—

'That if the work done by the mechanics, as disclosed by the evidence, increased the hazard while such work was being done, then the plaintiff is not entitled to recover.'

The court refused to give this instruction, and the defendant excepted.

The court, in the course of its charge to the jury, instructed them as follows:

'The identical question before you is whether, at the time the fire took place, what the county of Coos had done in the way of alterations and repairs increased the risk at that time, (that is, at the time of the fire; that is, on the night of November 4;) that the county of Coos had done in the way of repairs, changing the vaults, putting in additional heating apparatus,-did those things increase the risk at that particular time? Not whether mechanics, two days previously, or three days previously, or a week previously, had worked in that building. What was the condition of the building on the night of the fire? Had what the county of Coos did in making those repairs increased the risk, or had it not? Were the repairs ordinary or necessary, and accompanied by no increase of risk, or were they of such an extraordinary and material character upon that particular night that is, the condition in which the building was upon that particular night-that the risk was increased, and therefore the assured, the county, violated this condition in the policy, and consequently the defendant company should not be held liable.'

To this instruction the defendant excepted. There was a verdict and judgment for the plaintiff below for the sum of $5,505, and the present writ of error is prosecuted to reverse that judgment.

Harry Bingham, for plaintiff.

S. R. Bond and Fletcher Ladd, for defendant.

[Argument of Counsel from pages 456-461 intentionally omitted]

Mr. Justice JACKSON delivered the opinion of the court.