The judge's charge in this case was not excepted to, nor was there any motion for a nonsuit. The questions for review are presented by exceptions to the rulings in the admission or rejection of evidence, and upon requests to charge presented by the defendant; but no question was presented as to the non-liability of the defendant for any particular part of the loss, if it was liable at all, upon the policy. Under the condition in the policy, suspending its operation so long as the premises should be used for the purpose of carrying on therein any trade or occupation, or for storing or keeping therein, any articles, goods or merchandise, denominated hazardous or extra hazardous or specially hazardous, in the second class of the classes of hazards annexed to the policy, except as therein specially provided for or thereafter agreed to by the corporation in writing upon the policy, it is the settled law of this State, that any such article is specially provided for, if it as matter of fact, enters into and forms a part of the kind or line of business specified in the written part of the policy in the description of the risk assumed. The insurers being bound to know the nature and kind of articles belonging to the business and occupations against the risks of which they undertake to insure, the specification of the business is a sufficient special provision for all the articles belonging to it under the condition in the policy, even though some of those articles belong to the second class of hazards mentioned in the condition. (Harper v. Albany M. Ins. Co., 17 N.Y., 194; Harper v.N.Y. City Ins. Co., 22 N.Y., 441.) The defendant's exceptions to the question by the plaintiff, whether fire-works are usually kept in Baltimore, by persons in the same line of business as the plaintiff, and his exception to the exclusion of various questions put by him, whether fire-works are a part of the line of business of German jobbers and importers dealing in toys, fancy goods, etc.; whether when they are kept by German jobbers and importers dealing in fancy goods, they are in or out of their line of business, present the principal question of evidence involved. *Page 96 The plaintiff sought to show what was the fact in respect to keeping fire-works in Baltimore, by dealers in the same line of business with him, while the defendant's question involved the element of opinion on the part of the witnesses, as to the propriety of considering fire-works as forming part of the line of business of German jobbers and importers. That was of no sort of consequence, the material point being whether, in fact, the persons known in trade under the designation mentioned, did usually and generally, as matter of fact, keep fire-works. Accordingly the judge at the trial ruled that the opinion of witnesses could not be substituted for facts, and while excluding the questions under consideration, instructed the defendant's counsel that he was at liberty to ask if the persons whom the witness knew in Baltimore, carrying on the kind of business that the plaintiff did, usually kept fire-works. This the defendant's counsel declined to ask, and yet this was exactly material in the case.
The question what things were in the line of business the plaintiff was carrying on, was not one to be answered by opinions of experts, but by an investigation of facts, and the judge was, therefore, correct in excluding evidence of opinion on that point, on the part of the witnesses. (1 Phillips on Ins., ¶ 2112; 1 Greenleaf on Ev., § 440.)
Several requests to charge, were founded on the fact that there was written on the policy a privilege to keep fire-crackers on sale. One was that fire-works were not insured by the policy, if fire-crackers were not covered without the privilege. The others were in substance that a privilege for fire-crackers, was strong evidence that it was necessary to warrant the plaintiff to keep them and also that fire-works were not insured. The judge refused so to charge and rightly, because if keeping fire-works was part of the plaintiff's business described in the policy, the expression of a privilege for fire-crackers whether necessary or not was immaterial, and was equally so if as the defendant contended, keeping fire-works was not part of the plaintiff's business.
The request that the jury might consider the rate of premium *Page 97 paid as bearing on the question whether fire-works were intended to be insured, was properly refused. The company was not tied down to its printed rates, and the question was not whether it had charged premium enough for fire-works, but whether having insured the plaintiff's business, fire-works were not covered as a part of it.
The other request was that the court should rule that fire-works were not included in the line of the plaintiff's business as designated in the policy. This question had already been submitted on the evidence on both sides to the jury, and could not properly have been withdrawn from them. In conclusion it is proper to advert to the decision in Steinbach v.Insurance Co. (13 Wallace, 183), in which a different construction was placed upon similar terms in another policy in favor of the plaintiff here. The New York cases do not seem to have been adverted to, nor the case itself much considered. We should not be justified under these circumstances, in abandoning a settled line of decision in our own State in order to conform to it.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.