The principal question in this cause arises upon the defendants' exception to the charge of the judge in respect to the right of the plaintiffs to repair the buildings insured. It was ruled, and the jury was instructed, that the plaintiffs had a right to make reasonable and necessary repairs, provided they made them within a reasonable time and in a reasonable manner; that if the making of these repairs necessarily interrupted the supply of water to the tank, and they made no unreasonable delay, then the policy was not thereby rendered void. This ruling was made irrespective of the question whether the interruption produced an increase of risk, and, of course, involves the position that such an increase of risk would not necessarily make void the policy. *Page 174
The defence is placed upon the ground that such an increase of risk, occurring by means within the control of the assured, avoids the policy, notwithstanding its being necessarily occasioned in the process of repairing the building. The following clause, forming a part of what is contained in clause I, under the head of "Conditions of insurance," in the policy, is that on which the defendants rely as the basis of their defence: "If any person insuring any building or goods in this office shall make any misrepresentation or concealment; or if after the expiration of a policy of insurance and before the renewal thereof the risk of the building shall be increased by any means whatsoever; or if after insurance effected, either by original policy or by the renewal thereof, the risk shall be increased by any means whatever within the control of the assured; or if such buildings or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring or renewal, such insurance shall be void and of no effect."
In order to say whether the risk has been increased, it is necessary to inquire, in the first place, what risk was originally assumed. In other words, upon the insurance of a building, is not the risk incident to the process of necessary repairs a part of the general risk assumed by the insurers, in the absence, of course, of any stipulation in the contract importing the contrary?
When a building is insured, it is, of course, understood that it is to be used in the ordinary way of using similar buildings, and no one expects that it is to be set apart and wholly devoted to being kept safely. One of the ordinary incidents to this usual occupation is that of making repairs. The general right to make these has never been doubted, when the policy contained no special provision upon the subject. It has never been supposed that, to a claim for a loss happening in the course of or by means of necessary repairs, the insurer could say, the risk by which that loss *Page 175 was occasioned was not within the terms of my contract. In all the cases I have met with, where the subject is spoken of, the right to make such repairs is assumed to be clear, and nowhere is it denied, unless upon the ground of some special stipulation to the contrary. Stetson v. Massachusetts Mutual Fire InsuranceCompany (4 Mass., 330), Jolly v. Baltimore EquitableInsurance Company (1 Harr. Gill., 295), Dobson v.Sotheby (1 Mood. Malk., 90), Grant v. Howard InsuranceCompany (5 Hill, 10), Jennings v. Chenango Mutual InsuranceCompany (2 Denio, 75), O'Neil v. Buffalo Fire InsuranceCompany (3 Comst., 122), all illustrate this position. It is quite true that while such repairs are being made there may be a greater exposure to loss by fire, as may be also the case when fires are required in the winter for the comfort of the occupants. Such exposure, however, is part of the proper risk insured against. It is a hazard which the subject insured undergoes in the course of ordinary occupation, and which, therefore, cannot be deemed an increase of risk, within the condition set up by the defendants as avoiding their contract.
In my own opinion, the language of the condition is not such as to permit its application to the hazard occasioned by making ordinary repairs. The first clause of the condition is, "after the expiration and before the renewal of a policy, if the risk of the building be increased by any means whatsoever." The second clause relates to an increase of risk, by any means whatever within the control of the assured, while the policy is in force. The first clause, applying to that period when the contract is in not force, and yet is capable of being renewed, declares that it shall be inoperative if the risk of the building shall be increased by any means whatever. In that state of facts, whether the increase of risk was within the control of the assured or not was immaterial. This latter element becomes important in the case provided for in the second clause, where the policy is supposed *Page 176 to be in force at the time of the increase of the risk These two clauses provide for the risk of the building in all the contingencies for which provision was thought proper, leaving the subject of the occupation of the building or premises to be treated of in the third clause. It is true that, in the second clause, the words "of the building" are not repeated after the word "risk;" but this was not necessary to convey and limit the sense. The sentence consists of three branches, of which the last treats of the occupation of the premises, and exhausts that branch of the subject; and the two first treat of the state of the building distinct from its occupation, and furnish the rules which must govern under the several sets of circumstances which the parties have specified. Whatever "risk of the building" means, it will be seen that under the first clause an increase of it renders the policy incapable of renewal. Now, if after the policy had expired, and before the time for its renewal was elapsed, some ordinary repairs had been effected upon the building, leaving it in the substantial state from which it had deteriorated, there would seem to be no good reason why a renewal should not be possible; and it would not be pretended that the words in question were intended in that clause to cover such a case. They are, I think, restricted to the state or condition of the building either as to changes in its own structure increasing the risk, or changes in the buildings or erections in its neighborhood, or in the mode of occupying them. If this is their meaning in the first clause, the same meaning must be given to the expression in the second clause, if the observations I have before made are correct. The third clause is, "if such buildings or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring or renewal, then the insurance shall be void. Making necesary repairs about a building cannot be regarded as a way of occupying it. The phrase has a sense of continuousness, *Page 177 like the word "keeping," in Dobson v. Sotheby, above cited, and in Hynds v. Schenectady Insurance Company (1 Kern., 554), which is essential to its meaning.
SELDEN, J., expressed no opinion; all the other judges concurring,
*Page 179Judgment affirmed. *Page 178