On the 6th of December, 1867, the defendant insured the plaintiff in the sum of $2,500, for one year, on office furniture and fixtures, and merchandise, hazardous and extra hazardous, contained in the building situate at Nos. 307 and 309 on Broadway, in the city of New York. It was provided in the policy, that if the premises should be used for the storing or keeping therein any articles, goods or merchandise, denominated hazardous or extra hazardous or specially hazardous, except as specially provided for in the policy, so long as the same continued the policy was to be of no force. There was a further provision, that "if petroleum, rock oil, earth oil, benzole, benzine or naphtha, shall be stored in said premises without written permission therefor indorsed on this policy, this policy shall be absolutely null and void."
Another clause in the policy provided that "the following trades, occupations and merchandise add to the rate of the building and its contents fifty cents or more per $100, and, to be covered, must be specially written in the policy: burning fluid, camphene." Also, "camphene, spirits, gas or `burning fluid,' or any similar inflammable fluid when used in stores, warehouses, shops or manufactories as a light, subjects the goods therein to an additional charge, and such use renders this policy void, unless permission therefor shall be indorsed in writing hereon."
There was also the common provision that, in case the risk should be increased by any means within the control of the insured, or by the occupation of the premises for more hazardous purposes than permitted by the policy, then the policy should be void.
A motion for a nonsuit on the trial was denied, and upon the close of the evidence the case was submitted to the jury, and a verdict returned for the plaintiff. *Page 572
The defence was rested upon the fact that the plaintiff, who had been in the army during the late war, and had received a gun-shot wound resulting in a cutaneous disorder, which he treated by an application of crude petroleum oil to the surface of his body. For this purpose, the plaintiff kept crude petroleum in a jug upon a shelf in his room, and some quarts of it were in the building at the time of the fire, and with it a shirt and pair of drawers, which the plaintiff had worn after applying the oil, were found the morning after the fire. They had not been touched by the fire which occurred on the night of January 31st, 1868, and it is not claimed they, in any way, contributed to it; but this circumstance is quite immaterial, if having petroleum there in any quantity and for any purpose violated the contract of insurance.
It is very clear that, when the policy was written, no one understood that the keeping of petroleum oil for merely medicinal purposes, would render void the obligation of the defendant. The provision against "storing or keeping" was obviously aimed at storing or keeping in a mercantile sense, in considerable quantities, with a view to commercial traffic. It was not intended to forbid its use as a medicine. It might as well be claimed that if the plaintiff went to his medical adviser and had his shirt and drawers saturated with petroleum, with a view to the peaceful repose of a night, and brought them to bed on the insured premises, or if, indeed, he had taken a quantity internally, for a like purpose, it would have been a "keeping or storing" within the meaning of the policy. The cases in the courts, in principle, against the construction contended for by the defendant, are quite too numerous to authorize us to disturb the judgment of the court below. (Hoffman v. The Ætna FireIns. Co., 32 N.Y., 405; Reynolds v. Commerce Ins. Co. ofN Y, 47 id., 597; Cotton v. Springfield Ins. Co., 1 Sumner, 434; N.Y. Equitable Ins. Co. v. Langdon, 6 Wendell, 623.)
The point, that the plaintiff had, during the life of the policy, used some inflammable fluid for light, does not appear to have the slightest foundation. The restriction clearly did *Page 573 not apply to using a light in a sleeping apartment, but only to the use of camphene, etc., as a light for stores, warehouses, shops and manufactories. Besides, the plaintiff's evidence indicates that he had not used any forbidden light during the life of the policy, and, as the defendant on the trial did not ask to have any such question of fact submitted to the jury, it may be assumed that counsel then thought, as we think now, that there was nothing in the point.
The judgment must be affirmed, with costs.