Bartol, J.,
delivered the opinion of this court:
This suit was instituted on a policy of insurance, issued by the appellee, to John B. Howell, (the appellants’ testator,) on a dwelling house, situated on Albermarle street, in the city of Baltimore.
The premises insured were destroyed by fire in May 1854, and to recover the loss thereby incurred, this action was brought. The policy contains the following stipulations:
“ When any material alteration or repairs are about to be made in the premises insured, or any part thereof, during the continuance of this policy, which increase or vary the risks hereby insured, information thereof shall be given in writing to the office, and permission be obtained from the directors of said society to make such alterations or repairs, and in default thereof, any loss happening to the said insured premises by reason of making said repairs or alterations shall not be paid, or demanded, under this policy.”
[383]*383“if any hazardous trade, business or occupation, shall be carried on upon the premises insured, after the issuing of this policy, which shall increase the risk hereby insured, information shall, in like manner, be given to the said society, and a permission be obtained to carry on the said business, trade or occupation, so increasing the risk as aforesaid, and in default thereof, this policy shall be void, and no loss or injury accruing thereafter to the premises insured, shall be payable or demanded in virtue thereof.”
By agreement all errors of pleading were waived, and the defendant stated and relied on two grounds of defence:
“1st. That subsequently to the insurance, and during the continuance of the policy, material alterations in and about the premises iusured were made, which increased and varied the risks thereby insured, in this, to wit, that the joists were cut. out, and the ceiling or flooring between the first and second stories of the main building, were in part removed and taken out, without any information in writing being given to the defendant, and without any permission therefor having been obtained from the directors of said society, and that the loss which happened to said premises, and which is now surd for, did happen to the same by reason of making said alterations.”
“2nd. That a hazardous trade, business or occupation was carried on upon the premises insured, after the issuing of said policy, in this, viz., that the same were used as an organ factory, and with that view, divers large quantities of dry wood and combustible materials were used and left in and about said building, which did increase the risk thereby insured, without any information thereof being given to the defendant, and without any permission being obtained to carry on the trade, business or occupation, so increasing the risk as aforesaid, and that the loss now sued for did thereafter happen to said premises, and so the said defendant is not liable.” In the course of the trial below, evidence was given of the facts set out in the grounds of defence, and that the change in the interior construction of the building materially increased the risk; and also that organ building is a “hazard.[384]*384ous trade, business and occupation,” requiring the use of materials of a highly combustible character, which materially increased the risk to the premises insured. The defendant then asked two instructions to the jury, both of which were panted by the consent and acquiescence of the plaintiffs, and the plaintiffs on their part offered eight prayers, all of which were likewise granted by consent. The defendant then offered a third prayer, which was granted by the court, and to the granting thereof the plaintiffs excepted. That, is the only exception brought before us on this appeal, which presents the single question of the propriety of the ruling by the Superior court upon the defendant’s third prayer.
The first and second prayers of the defendant, which are referred to and incorporated in the third prayer, are as follows:
“1. If the jury shall find, from the evidence, that after the execution of the policy in evidence, and before the fire, as stated in the evidence, the plaintiff, or his tenant, caused certain material alterations to be made on the property insured; and shall further find, that ‘by reason of inaking said alterations,’ a material increase of risk was occasioned to the property insured, and that the said loss by fire was occasioned by reason of said alterations, then the plaintiff is not entitled to recover in this action, because he has failed to show, in evidence, the notice and permission required by the terms of the condition of the policy.”
“2. If the jury shall find, from the evidence, that after the execution of the policy, in evidence, and before the fire, the plaintiff, or his tenant, carried on in said premises ‘any hazardous trade, business or occupation;’ and shall further find that the risk insured by said policy was thereby materially increased, then the plaintiff is not entitled to recover in this action, he not having shown that the notice' required by the terms of said policy was given to the defendant, nor the permission, provided for by the terms of the policy, had been first obtained from the company.”
The third prayer was as follows:
“If the jury shall find, from the evidence, the facts in [385]*385either of the defendant’s 1st or 2nd prayers, then the jury must find a verdict for the defendant, even although they shall believe, from the evidence in the cause, (hat the fire which destroyed said premises, mentioned in said policy of insurance, on the night of the 27th of May 1854, was the work of an incendiary, and even although they shall further believe, from the evidence in the cause, that said alterations were made, or that said hazardous trade was carried on in said premises by the plaintiffs’ tenant, Pomplitz, without the knowledge or consent of the. plaintiffs’ testator, that said insured building should be so used.”
The first and second prayers presented two distinct grounds of defence, which, in examining the third prayer, where they are blended together, it is necessary to consider separately.
Under the first prayer, in order to exempt the company from liability, it was necessary for the jury to find, “that the loss was occasioned by reason of the alteration in the building;” and by the third prayer the jury was instructed, that if they so found, the defendant was entitled to a verdict, although they should “believe, from the evidence, that the fire which destroyed the premises was the work of an incendiary.” This instruction, it has been contended, was erroneous, because, it is said, if the fire was caused by an incendiary, it is impossible the loss which resulted could have been occasioned by the alteration in the building; that the alteration proved was such as did not increase the liability to fire, but only tended to increase the extent of the conflagration, and to augment the amount of the loss; and although to the extent of such increase of the loss, the defendant would be exempt, yet the plaintiffs would have a right to recover for so much of the loss as did not result from the alterations. And it was further contended, by the appellants, that the onus was upon the defendant, claiming the exemption, to show to what extent the loss and damage were occasioned by the alteration made in the building.
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Bartol, J.,
delivered the opinion of this court:
This suit was instituted on a policy of insurance, issued by the appellee, to John B. Howell, (the appellants’ testator,) on a dwelling house, situated on Albermarle street, in the city of Baltimore.
The premises insured were destroyed by fire in May 1854, and to recover the loss thereby incurred, this action was brought. The policy contains the following stipulations:
“ When any material alteration or repairs are about to be made in the premises insured, or any part thereof, during the continuance of this policy, which increase or vary the risks hereby insured, information thereof shall be given in writing to the office, and permission be obtained from the directors of said society to make such alterations or repairs, and in default thereof, any loss happening to the said insured premises by reason of making said repairs or alterations shall not be paid, or demanded, under this policy.”
[383]*383“if any hazardous trade, business or occupation, shall be carried on upon the premises insured, after the issuing of this policy, which shall increase the risk hereby insured, information shall, in like manner, be given to the said society, and a permission be obtained to carry on the said business, trade or occupation, so increasing the risk as aforesaid, and in default thereof, this policy shall be void, and no loss or injury accruing thereafter to the premises insured, shall be payable or demanded in virtue thereof.”
By agreement all errors of pleading were waived, and the defendant stated and relied on two grounds of defence:
“1st. That subsequently to the insurance, and during the continuance of the policy, material alterations in and about the premises iusured were made, which increased and varied the risks thereby insured, in this, to wit, that the joists were cut. out, and the ceiling or flooring between the first and second stories of the main building, were in part removed and taken out, without any information in writing being given to the defendant, and without any permission therefor having been obtained from the directors of said society, and that the loss which happened to said premises, and which is now surd for, did happen to the same by reason of making said alterations.”
“2nd. That a hazardous trade, business or occupation was carried on upon the premises insured, after the issuing of said policy, in this, viz., that the same were used as an organ factory, and with that view, divers large quantities of dry wood and combustible materials were used and left in and about said building, which did increase the risk thereby insured, without any information thereof being given to the defendant, and without any permission being obtained to carry on the trade, business or occupation, so increasing the risk as aforesaid, and that the loss now sued for did thereafter happen to said premises, and so the said defendant is not liable.” In the course of the trial below, evidence was given of the facts set out in the grounds of defence, and that the change in the interior construction of the building materially increased the risk; and also that organ building is a “hazard.[384]*384ous trade, business and occupation,” requiring the use of materials of a highly combustible character, which materially increased the risk to the premises insured. The defendant then asked two instructions to the jury, both of which were panted by the consent and acquiescence of the plaintiffs, and the plaintiffs on their part offered eight prayers, all of which were likewise granted by consent. The defendant then offered a third prayer, which was granted by the court, and to the granting thereof the plaintiffs excepted. That, is the only exception brought before us on this appeal, which presents the single question of the propriety of the ruling by the Superior court upon the defendant’s third prayer.
The first and second prayers of the defendant, which are referred to and incorporated in the third prayer, are as follows:
“1. If the jury shall find, from the evidence, that after the execution of the policy in evidence, and before the fire, as stated in the evidence, the plaintiff, or his tenant, caused certain material alterations to be made on the property insured; and shall further find, that ‘by reason of inaking said alterations,’ a material increase of risk was occasioned to the property insured, and that the said loss by fire was occasioned by reason of said alterations, then the plaintiff is not entitled to recover in this action, because he has failed to show, in evidence, the notice and permission required by the terms of the condition of the policy.”
“2. If the jury shall find, from the evidence, that after the execution of the policy, in evidence, and before the fire, the plaintiff, or his tenant, carried on in said premises ‘any hazardous trade, business or occupation;’ and shall further find that the risk insured by said policy was thereby materially increased, then the plaintiff is not entitled to recover in this action, he not having shown that the notice' required by the terms of said policy was given to the defendant, nor the permission, provided for by the terms of the policy, had been first obtained from the company.”
The third prayer was as follows:
“If the jury shall find, from the evidence, the facts in [385]*385either of the defendant’s 1st or 2nd prayers, then the jury must find a verdict for the defendant, even although they shall believe, from the evidence in the cause, (hat the fire which destroyed said premises, mentioned in said policy of insurance, on the night of the 27th of May 1854, was the work of an incendiary, and even although they shall further believe, from the evidence in the cause, that said alterations were made, or that said hazardous trade was carried on in said premises by the plaintiffs’ tenant, Pomplitz, without the knowledge or consent of the. plaintiffs’ testator, that said insured building should be so used.”
The first and second prayers presented two distinct grounds of defence, which, in examining the third prayer, where they are blended together, it is necessary to consider separately.
Under the first prayer, in order to exempt the company from liability, it was necessary for the jury to find, “that the loss was occasioned by reason of the alteration in the building;” and by the third prayer the jury was instructed, that if they so found, the defendant was entitled to a verdict, although they should “believe, from the evidence, that the fire which destroyed the premises was the work of an incendiary.” This instruction, it has been contended, was erroneous, because, it is said, if the fire was caused by an incendiary, it is impossible the loss which resulted could have been occasioned by the alteration in the building; that the alteration proved was such as did not increase the liability to fire, but only tended to increase the extent of the conflagration, and to augment the amount of the loss; and although to the extent of such increase of the loss, the defendant would be exempt, yet the plaintiffs would have a right to recover for so much of the loss as did not result from the alterations. And it was further contended, by the appellants, that the onus was upon the defendant, claiming the exemption, to show to what extent the loss and damage were occasioned by the alteration made in the building.
On the other hand, the appellees have contended that the onus was upon the plaintiffs to show to what extent the loss was caused by the work of an incendiary, and was wholly [386]*386independent of the alterations in the building, and that in the absence of any such proof they are not entitled to recover. This is a very nice and ingenious point, the decision of which is not altogether free from difficulty. But, in the opinion of a majority of this court, the appellants’ view ought not to be sustained. It may be true, as a general rule, that where a loss has happened from the perils covered by a lire policy, and the insurer claims exemption, under such a clause as that w hich in this case constitutes the first ground of defence, the obligation rests upon the insurer, to prove the facts which entitle him to the exemption. But the question now presented, by the argument, is one of partition or division of the loss. While the case presented by the record is one of a total or entire destruction of the building by fire, and a claim for the whole loss, for a portion of which it is conceded, in the argument on this point, the defendant is not liable, and without any proof, or any possibility of proof, to show to what extent it resulted from causes covered by the policy, or to what extent it was occasioned by the acts of the plaintiffs’ tenant, in violation of the contract.
Under such a state of facts, it would be unjust and contrary to the spirit and intention , of the contract, to impose .upon the insurance company the burden of proving the extent of its exemption, which has been rendered impossible by the wrongful act of the other party, or what is the same thing, of his tenant in possession of the property.
The loss being entire and indivisible, and it being shown to have resulted, either altogether or to an unknown extent, from an unauthorized alteration in the building, which increased the risk, the loss must fall on the insured, unless he furnishes proof of some loss which was occasioned by other causes than'the alteration.in the building.
The facts stated in the defendant’s second prayer, if found by the jury, exempted the company from all liability upon the policy; because, by the terms of the contract, such facts rendered the policy void; and this result • would not depend,.in any manner, upon the cause or origin of-the fire; nor would it be varied, by reason of the hazard[387]*387ous trade being carried on by the plaintiffs’ tenant, without his knowledge or consent. Parsons Merc. Law, 505. Duncan vs. Sun Ins. Co., 6 Wend., 493, 494.
(Decided July 13th, 1860.)
We find no error in the granting of the defendant’s third prayer; no objection is made to it on account of its form, and the principle it asserts would seem to follow, as an inevitable consequence, from the first and second prayers, which were conceded by the plaintiffs. In the opinion of a majority of this court, the ruling below, upon the defendant’s third prayer, shall be affirmed.
Judgment affirmed.