Kelly v. Worcester Mutual Fire Insurance

97 Mass. 284

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1867
• Status: Published

Opinion

Gray, J.

We have not found it necessary to consider the question, which was much discussed at the bar, whether, by the fair construction of the agreed statement, the plaintiff must be taken to have known that the building insured was used for unlawful purposes; because we are of opinion that upon the undisputed facts such knowledge need not be shown in order to sustain the defence.

The plaintiff’s tenant, for two or three months before the fire, stored a number of barrels of intoxicating liquors in the building, with intent to sell such liquors in it, and did in fact from time to time sell the same there by retail without license, in violation of the Gen. Sts. c. 86, §§ 28-34, and did not sell or keep for sale on the premises any other property. This habitual use of the building for an unlawful purpose by the tenant, even if unknown to the owner, avoided his policy, by the terms of the first proviso, the manifest object of which is to define certain risks which the insurers will not assume, without regard to the question whether they arise or exist by the act or with the knowledge of the assured; and the omission of any reference to him in this proviso is made the more marked by the repeated mention of his action and control in the proviso which immediately follows. The clause in the first proviso, which might most plausibly be argued to involve his knowledge or permission, is that next after the clause “ if occupied or used for unlawful purposes,” by which it is further stipulated that “if wood ashes are allowed in wooden vessels,” the policy shall be void. But it has been decided by this court that a policy containing a clause almost precisely like this was avoided by the placing of ashes in a wooden barrel by a servant, without any direction of the assured. Worcester v. Worcester Insurance Co. 9 Gray, 27. See also Mead v. Northwestern Insurance Co. 3 Selden, 533; Fire Association of Philadelphia v. Williamson, 26 Penn. State, 196; Howell v. Baltimore Equitable Society, 16 Maryland, 377.

In some of the cases cited for the plaintiff, the prohibited use was not so constant or habitual or of such a nature as to fall within the terms of the provision, and in the others the knowledge or assent of the assured was expressly required in order to avoid the policy. Judgment for the defendants.