Other Special Cases.

whether the theories of the experts are not rendered inapplicable by special circumstances proved. Cornish v. Farm Buildings Fire Ins. Co., 74 N. Y. 295. Affi'g 10 Hun, 466.

124. Upon an issue as to concealment and increase of risk, evidence that if company had known the fact it would have increased the premium, is not evidence of an increase of the risk. The question in such a case is not how the parties might regard it, but whether or not the fact concealed did increase the hazard. Virginia F. and M. Ins. Co. v. Klæber, 9 Ins. L. J. 354; 31 Grat. 749 (Va.)

125. The testimony of an insurance expert that "companies would not insure unoccupied buildings on account of increased risk, and that a risk was regarded as greater or less according to amount of insurance and value of the property" is incompetent. Thayer v. Providence Ins. Co., 70 Me. 531.

126. Upon the question as to whether it was a material change of risk for insured property to become vacant during the existence of the policy, the opinions of experts are inadmissible. Kirby v. Phoenix Ins. Co., 9 Lea, 142 (Tenn.)

131.- Expert evidence as to the burr and roller process is admissible to assist the jury in determining whether or not the hazard was increased by the alteration in the machinery. Id.

132.- Fact of person being an agent does not qualify him as an expert to testify as to increase of risk; it seems experience in passing upon risks may qualify him.

Stennett v. Pennsylvania Fire Ins. Co., 15 Ins. L. J. 536; 68 Iowa, 674.

133.- Where an applicant for insurance upon a barn is not questioned as to its contents, the insurer cannot claim that it contained other property than that insured which increased the hazard, unless he can show that the applicant concealed the facts fraudulently. Campbell v. American F. Ins. Co., 40 N. W. Rep. 661; 73 Wis. 100.

134. Other special cases. Policy on house, "and also a kiln for drying corn in use." Third condition provided that policy should be void in case of misrepresentations in the description of the premises; and the sixth condition avoided the policy in case of change in the business carried on, without notice to the company. The proof was, that a vessel laden with 127. Whether or not hazard is in- bark sunk near the premises, and the ascreased by proximity of new buildings is sured allowed the bark to be dried, graa question for the jury; evidence of ex-tuitously, at his kiln, and this caused the perts that risk is increased not admissible fire. Held, that the case was not within in absence of proof that assured had some the third condition, for that related to the notice or knowledge of the rules of insur-time when the description was made, and ance. Franklin Fire Ins. Co. v. Gruver, 11 Ins. L. J. 835; 100 Pa. 266.

128.- Where the policy provides that it shall be void "if the risk be increased by any means" the fact that there was an increase of the risk by the act of assured is an affirmative defense and must be set up in the answer. Tischler v. California etc. Ins. Co., 66 Cal. 178.

it was correct; nor within the sixth, for that related to a permanent or habitual alteration in the business; and judgment was rendered in favor of assured. Shaw v. Robberts, 6 Adolph. & Ellis, 75; 33 Eng. C. L. 12.

135.- Policy on stock in trade and utensils in a certain room and in open yard, with conditions that in case of alter129.- Upon a question of an increase ations increasing the risk or of removal of of risk by the use of a "drier" it is any property insured to other premises, it proper to receive evidence of the circum-should be void, unless the same were nostances of its actual use. Mere opinion tified to the company. Certain boilers that risk is increased not admissible. German American Ins. Co. v. Steiger, 13 Ins. L. J. 546; 109 Ill. 254.

were removed from the yard into the building. Held, 1st, that the burden of showing an increase of risk, or of showing 130.- The rate of premium is proper that there was no notice given, was upon evidence on the question of an increase of the company; 2d, that the question was risk though not of itself conclusive. not whether the removal of the boilers inPlanters' Mutual Ins. Co. v. Rowland, 16 creased the risk, but whether the use of Ins. L. J. 345; 5 Cent. Rep. 604; 66 Md. 236. | them in the ordinary way increased the

Other Special Cases.

141.- Policy provided that if the risk "be increased by the erection of buildings, or by the use and occupation of neighboring premises or otherwise, of which prompt written notice shall be given to the company by the assured, or if for any other cause the company shall so elect, it shall be optional with the company to terminate the insurance," etc. The risk was increased during continu

risk; 3d, that a plea that the boilers were dwelling house, and was making reasonput in use and used, was bad; it should able efforts to get a new tenant. Gamhave averred a perpetual use. Barret v. well v. Merchants' & Farmers' Mut. Fire Jermy, 3 Wels. Hurls. & Gord. 535 (Eng.) Ins. Co., 12 Cush. 167 (Mass.) 136.— The assured in giving notice to 140.- Under clause, that, if risk be the company of the introduction, into materially increased without assured's the mill insured, of a kiln drying ma-agency or consent, notice thereof shall be chine, stated "it is for burning hard given to the company or the policy shall coal." Held, that this was a mere state- be void; held, that such an increase of ment that the machine was designed "for risk, without notice, avoided the policy; burning hard coal," without binding the and that the burden of proof of notice assured not to use other fuel, if it should was upon the assured; and that it was become necessary; provided the risk was immaterial whether the loss happened in not thereby increased. Tillou v. King-consequence of such increased risk or not. ston Mut. Ins. Co., 7 Barb. 570 (N. Y.) Gardiner v. Piscataquis Mut. Fire Ins. 137. In the absence of any stipulation Co., 38 Me. 439. to that effect, the erection of a building adjacent to the one insured, by the party holding the policy, though it may increase the risk, will not avoid the policy. But if such an act of the assured party is the cause of the loss to the company, the insured cannot recover, as the loss is occasioned by his own misconduct. Howard v. Kentucky & Louisville Mut. Ins. Co., 13 B. Monroe, 282 (Ky.) 138.- Where policy provided that "inance of the policy, by acts of third parcase of any material increase of risk to the property insured in this company, such increase of risk must be notified to the company, and written permission therefor be obtained from the secretary, for which such charge as may be proper must be paid," and the jury were instructed that the insured could not recover, if they should find that certain improvements or alterations either in themselves or during their progress to completion, occasioned "any additional increase of risk." Held, that such instruction was erroneous, as the 142.- Where an application repreincrease of risk, to avoid the policy, must sented that one stove was used in the be that specified by the condition, to wit, building insured, and another stove was "a material increase." Held, further, subsequently put in and used without nothat, assuming the increase of risk to be tice, and the by-laws of the defendant material, a failure on the part of assured company provided that “if the risk shall to give the notice would not be excused be increased by the insured or others by on the ground that he had used reason- any change of the circumstances disclosed able diligence to give such notice, but had by the application," etc., "the policy shall been prevented by the negligence or mis-be void." Held, incumbent on the defendconduct of the company or its secretary. ant company to show that the addition of Allen v. Mutual Fire Ins. Co., 2 Md. 111. 139.- The mere fact of a building insured as a "dwelling house" being subsequently vacated, will not avoid the policy, although the risk be thereby increased, if the insured intended it to be used as a

ties, but no notice of same given to the company. Held, that the only thing required by the condition was "prompt written notice," and as the company could not assume that they would have terminated the insurance, had notice of such increase of risk been given, and as the fire was not caused by such increase of risk, the company could not introduce evidence of such increase of risk to avoid the policy. Joyce v. Maine Ins. Co., 45 Me. 168.

the second stove increased the risk, if they would avoid the insurance. Newhall v. Union Mut. Fire Ins. Co., 52 Me. 180.

143.- Where a policy is for a year, and is renewed and then is substituted by a

General Rules.

should be increased, the same should be IV. ALTERATION AND REPAIRS.

General Rules.

shorter time. Glen v. Lewis, 8 Wels. Hurlst. & Gord. 607 (Eng.)

4.- Policy provided, that “if any alteration should be made in any house or building, by the proprietor thereof, after insurance has been made thereon, with said company, whereby it may be exposed to greater risk or hazard, from fire, than it was at the time it was insured, then, in every such case, the insurance shall be void, unless an additional premium and deposit, after such alteration, be settled with, and paid to, the directors; but no alterations or repairs in buildings, not increasing such risk or hazard, shall in anywise affect the insurance previously made thereon. In an action on the policy;

sured, but during term of policy, the administrators proceeded to repair the house thoroughly; in the course of which repair, being untenanted except by the workmen with their benches and tools, the house was destroyed by fire, by act of incendiarism. Held, that by insuring, the assured had not relinquished the right of exercising the ordinary and neces sary acts of ownership over their houses, and that the insured might therefore, the policy being silent on the subject, make not only ordinary repairs, but such a thorough repair as to render the house tenantable in the mode commonly pursued on such occasion. But if by gross negligence or misconduct of the workmen employed, a fire ensue, or if alterations held, that any alteration made in the be made in the subject insured, materially enhancing the risk, and not necessary to the enjoyment of the premises insured, or according to usage and custom were not the result of the exercise of such ordinary acts of ownership, as in the understanding of the parties were conceded to the insured at the time of the insurance; and a loss by fire is thereby produced; then the assured cannot recover. Held further, that all these questions were to be determined by the jury, and not by the court. Jolly v. Baltimore Equitable Society, 1 Harris & Gill, 295 (Md.)

building insured by the advice or consent of, or with the knowledge of the assured, would avoid the policy, if a higher rate of premium would have been demanded to insure the building in its altered state than would have been demanded before; if a higher rate of premium would not have been demanded, the alteration was immaterial; but, if material, the policy would be avoided, although the loss was not occasioned by such alteration. Merriam v. Middlesex Mut. Fire Ins. Co., 21 Pick. 162 (Mass.)

5.- Where there had been an alteration 2.— An alteration or enlargement of a of the "stove and smoke pipe,” the judge building will not avoid the policy, unless instructed the jury, that, if the alteration the risk be thereby increased; which must increased the risk, the policy would be be determined by the jury. Curry v. void. Held, that this instruction was Commonwealth Ins. Co., 10 Pick. 535 correct. Jones Manufacturing Co. V. (Mass.); Stetson v. Massachusetts Mutual Manufacturers' Mut. Ins. Co., 8 Cush. 82 Ins. Co., 4 Mass. 330.

(Mass.)

3.- Policy on stock of cabinet maker 6. The policy in this case was on a with condition that, in case of any altera-dwelling house. At time it was made tion of building containing the property insured, or of any steam, steam engine, &c., being introduced, without being notified to the company and indorsed on the policy no benefit will arise to the insured on the policy in case of loss. The insured erected a brick furnace or boiler, to which he attached a steam engine to try whether it was worth his while to buy it, and built a fire once, giving no notice to the company. Held, that the policy was avoided, and that it made no difference whether the engine was used by way of experiment, or as a mode of carrying on business, or whether it was used for a longer or

there was a store, belonging to assured, standing within thirty-six feet of the dwelling insured, the existence of which had been made known to the insurers in the application. Whilst the policy was in force, the store building burnt up, and assured went to work to rebuild the same; and in course of such rebuilding, the carpenters kept their benches and tools in the store building and worked in wood, making shavings, &c. The store building then took fire during a high wind and communicated the flames to the dwelling insured, which was also destroyed. The insurers had had no notice of this rebuild

Alterations Which Void Insurance.

ing, nor was there anything in the policy | property to be destroyed by fire. It is a prohibiting it. Held, that assured having question for the jury. Crane v. City Ins. used reasonable care in the rebuilding of Co., 3 Fed. Rep. 558. the store building, was entitled to recover. Young v. Washington County Mut. Ins. Co., 14 Barb. 545 (N. Y.)

7.- Where the policy provided that "any alterations or repairs made in or about the insured property must be at the risk of the party insured;" held, that alterations or repairs did not per se avoid the policy, but only that the assured party should assume the hazard of their increasing the liability of the insurer. Girard Fire & Marine Ins. Co. v. Stephenson, 37 Pa. 293.

8.- When alterations and additions to a building materially increase the risk, so that the insurer would be entitled to a higher rate of premium, the policy will be treated as absolutely void if the insured fail to give notice as required by the terms of the policy. Kern v. South St. Louis Mut. Ins. Co., 40 Mo. 19.

9. A clause of avoidance if a "building should be altered, enlarged, or appropriated to other purposes," "or the risk otherwise increased with the assured's knowledge," does not mean any alteration though not increasing the risk; nor on the other hand does it mean no alteration not permanently increasing the risk; but there must be an increase of risk, and it need not be permanent. A deliberate, considerable alteration, not incidental to the ordinary use of the property, prolonged for three weeks, increasing the risk at the time of the fire, although not permanently, nor causing the fire, avoids the policy. Lyman v. State Mut. Ins. Co., 14 Allen, 329 (Mass.)

11. Limitation by special clause to "carpenter's risk only," does not necessarily limit the insurance to completion of the repairs. Alkan v. New Hampshire Ins. Co., 11 Ins. L. J., 125; 53 Wis. 136.

12.- A building forty feet distant from insured building, although connected by a bridge and an underground passage can not be called an "addition," covered by an indorsement permitting "additions, alterations and repairs." Peoria Sugar Refining Co. v. People's Fire Ins. Co., 15 Ins. L. J., 52; 24 Fed. Rep. 773; and see 52 Conn. 581.

13. Where a fire insurance policy prohibits alterations, additions, or enlargements of the building without consent, a written provision therein authorizing “necessary alterations and repairs " gives no right to make, without consent, a material enlargement of the building. Frost's D. L. & W. W. Works v. Millers' & Mfrs'. Mut. Ins. Co., 37 Minn. 300; 5 Am. St. Rep. 846; 34 N. W. Rep. 35.

14.- A provision in a fire insurance policy that if the building is “altered, added to or enlarged " notice must be given and consent indorsed on the policy; and a by-law incorporated in the policy, providing that if the building is "altered, enlarged, or appropriated to any other purposes than those mentioned, or the risk be otherwise increased," without consent, the policy shall be void-make notice and consent of the company necessary to a material enlargement of the building, although the risk be not in any manner increased. Id.

15. In a policy reciting payment of a certain sum for insurance against fire, especially loss arising from carpenters, etc., employed upon the premises, a condition against liability for loss where carpenters are employed, unless special consent is first obtained and indorsed, is not repugnant to the contract, and the recital does not constitute the consent stipulated for. *Morrison v. London F. Ins. Co., 6 Manitoba L. Rep. 225.

10.- Policy contained clause as follows: "The insured has permission to make alterations and repairs incidental to the business." Defense was an increase of the risk. Held, that above clause could not be extended to embrace all alterations which parties might desire to make connected with carrying on of the business, although it might increase, to an unlimited extent, liability of premises to be destroyed by fire. Clause must be understood as embracing such alterations in 16. Alterations which void insurrelation to the carrying on the business of | ance. Where policy provided that notice the plaintiffs as would not essentially and must be given in writing to the company, materially increase the liability of the and their consent obtained, to any ma