l.insurance: ditíons ? effect of negligence, The facts in regard to the cause and origin of the fire which destroyed the property insured are not contested. They are as follows: The PIPe a stove used in the house passed through the floor of an upper chamber, thence with an elbow into a flue built in the wall. This stove, not being required for use in the summer months, was usually removed. With the intention of removing it, the wife of plaintiff took down the pipe in the second story chamber, and placed a bed over the hole in the floor through which the pipe passed, but she neglected to remove the stove. A few days after, a visitor complaining of the cold, the wife caused a fire to be built in the stove. This she did forgetting that the pipe had been removed. The result was fire communicated to the bed, and the house was consumed. This occurred in the month of July. There is no evidence that the act of the wife causing a fire to be built in the stove was with the intention of destroying the house, but was simply done through negligence and forgetfulness.
The covenant bound plaintiff to keep the pipe “ well secured.” He was obligated thereby to keep it in such condition, and to exercise toward it such care as a man of ordinary prudence would exercise for the protection of his property. The defendant was protected by this covenant from the effects of defective pipes and stoves. It did not ■bind plaintiff to keep them always up and constantly in use. He could, if his comfort or convenience so required, remove them and dispense with their use. This would not increase the hazard of the risk, and it was therefore not in violation of the conditions of the policy. The contract was entered into with the implied assent of defendant that plaintiff should possess this right. Therefore,-'if in its exercise the property was lost, defendant is liable. Does the act of plaintiff'come under this rule? The pipe was removed preparatory to removing the stove; the use of both were intended to be dispensed with. The stove was put in a condition not to be used. Its use was just as much intended to be dispensed with as though it had been removed to another room or into some out-of-the-way place usually set apart as the receptacle of such things when not in use. Had it been so removed and some one, through negligence and thoughtlessness, should have kindled a fire therein resulting in the destruction of the property, the defendant would have been liable. And-this would have been so, as we shall presently see, if, the act had been done by plaintiff without fraud or intention to set the house on fire; or without such gross negligence as one with ordinary prudence under no circumstances would fall into.. The covenant under consideration does not bind plaintiff to keep the pipe well secured when not in use.
These views do not give assent to the doctrine that the covenants and warranties of plaintiff may be disregarded and not literally performed. But we simply maintain that the act of plaintiff in removing the pipe was not covered by the warranty. As all covenants between contracting parties, the undertaking of plaintiff to keep the stoves and pipe secured must be applied to the subject and time within the contemplation of the parties. It will not be extended beyond them to the prejudice of the assured. We cannot so construe it that it will impose restrictions which are unreasonable. Peterson v. The Mississippi Valley Ins. Co., 24 Iowa, 494; Loud v. Citizens' Mutual Ins. Co., 2 Gray, 221; Sayles v. North Western Ins. Co., 2 Curt. C. C. 610 ; Turley v. North Americcm Ins. Co., 25 Wend. 374; Townsend v. Worth Western Ins. Co., 18 N. Y. 168; Gloucester Manufacturing Co. v. Howard Fire Ins. Co., 5 Gray, 497; Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20; Gates v. Madison Ins. Co., 1 Seld. 469; Hide v. Bruce, 3 Doug. 213; Dobson v. Sotheby, 1 Moody & Malkin, 90.
We conclude that plaintiff’s warranty did not forbid the temporary removal of the pipe at a time the stove was not in use, such restriction not being within the contemplation of the parties.
II. We are now brought to inquire as to the liability of defendant for the negligent acts of the insured and his
It has been held that this rule will not excuse extreme, reckless, and inexcusable negligence on the part of the assured, the consequence of which must have been palpably obvious to Mm at the time. Chandler v. Worcester Mutual Fire Ins. Co., 3 Cush. 328. But this decision cannot be regarded as in conflict with the current of the authorities. The gross degree of negligence, and its inexcusable character, coupled with the knowledge of its certain effects, ought, it would seem to us, to raise a presumption that the party intended the obvious and necessary consequence of his act, which at the time were apparent to him.
The principles above stated, are substantially embodied in instructions given to the jury; others requested by defendant, and presenting different doctrines, were refused by the court. These rulings are approved, and need not be further noticed.
III. The plaintiff was permitted, against defendant’s objection, to show by his own testimony that it was the custom in his house, in the summer time, to take the stove, from which the fire was communicated to the house, -out of the room where it was used. Mrs. McKay was
IY. The jury were directed by the court to the effect that if plaintiff delayed bringing suit until after the expiration of six months in consequence of inducements held out by defendant’s officer, causing him to believe that the loss would be paid or adjusted without suit, this would operate to remove the bar created by the condition of the policy requiring an action thereon to he brought within six months after the loss. This instruction is clearly correct. A course of conduct on the part of defendant or representations of its officers which would give reasonable ground upon which plaintiff did in fact base the belief that his claim would be settled, would estop defendant to set
á. Evidence.* explanatory of admissions. Y. In compliance with the terms of the policy, plaintiff made and delivered to defendant an affidavit setting out the facts connected with the loss; this , paper was introduced, m evidence upon the trial by defendant. Plaintiff, in his own testimony, was permitted to explain the circumstances under which it was given, and to state the fact that he did not understand the purpose which defendant had in demanding it. He believed at the time that it was to be used for publication as an advertisement. It was prepared by one of the officers of the company. This evidence was objected to, and its admission is now made the ground of an assignment of errors. The statements of the plaintiff in his evidence do not contradict those of the affidavit. The affidavit was introduced by defendant to prove the circumstances of the loss and to establish the admission of plaintiff that he had not done right in ■ permitting the stove to stand after the removal of the pipe. In his evidence, while admitting the statement of facts of the affidavit, he states the understanding he had of its language, and the idea he intended^ to convey in it. This is certainly not objectionable. Ilf the language of a witness, either written or oral, is introduced to establish an admission, he has the privilege of giving his understanding of its import, of stating its true meaning in the connection as
5. DsrsuEArrcii: estoppO0fi.loss' YI. Formal proof of loss was not made, as required by the terms of the policy,' until October following the fire. The statement signed and sworn to byplaintiff above referred to had been made on the 13th of July. The court instructed the jury that, “if the company waived proof of loss in the first instance, and then afterward took under advisement the proof of loss presented in October, and agreed or promised to take action upon it, then plaintiff had the right to wait until defendant took action allowing or refusing the claim before bringing his suit.” In another instruction, the jury were directed that, “if you find the secretary or other officer of the company having authority to act for it promised or agreed to notify plaintiff or his attorneys when final action would be taken upon the claim for loss, then it was the duty of defendant to give notice of its final action.” These instructions are correct. It was competent for defendant to waive the required promptness in the proof of loss, and if proof was afterward submitted which it promised to consider, agreeing to notify plaintiff of the result thereof, this action would estop it from pleading the delay, either in making the proof or commencing the suit. The assured could well rely upon the good faith of defendant in respect to these agreements, and govern his actions accordingly. There was evidence given to the jury to which these instructions were applicable, and upon which they were justified in finding the facts contemplated by the instructions.
VIII. Objections are urged to one of the questions propounded to the jury by the court. No exception was taken to it in the court below; it cannot, for that reason, be reviewed here.
IX. It is insisted that the verdict is hot supported by the evidence. We think otherwise. The evidence authorized the jury, in the intelligent and honest exercise of judgment, to find for plaintiff.
The defendant’s counsel present the case upon twenty-four assignments of errors, which they have argued under seventeen points. We have not separately discussed each point, believing that all could be sufficiently considered in the manner we have adopted in treating the case. Those not explicitly referred to have been properly considered, and we deem them sufficiently answered in the foregoing
Affirmed.