Tischler v. Cal. Farmers' Mut. Fire Ins. Co.

Ross, J. 1. Appellant claims that, upon the authority of Gilmore v. The Lycoming F. I. Go., 55 Cal. 123, defendant’s motion for judgment on the pleadings should have been granted. [179]Even if the policy involved in this case was similar to that involved in that, the decision there would not be authority for sustaining the motion here in question But in Gilmore v. The Lycoming Company, the application of the insured was expressly made a part of the policy, and therefore constituted a part of the contract ; and it having affirmatively appeared from the complaint in that case that all of the terms of the contract were not stated, but that a portion, which might prove material, had been omitted, the complaint, on demurrer, was held insufficient, and the demurrer sustained, with leave given the plaintiff to amend the complaint. In the present case, the application, as shown by the evidence, was a mere verbal one, which was authorized by the terms of the policy.

2. The policy sued on provides that it shall be void “ if the risk be increased by any means,” or * * * “ if gunpowder, phosphorus, camphene, spirit, gas or chemical oils are kept or used on the premises without written consent.” The property insured was the plaintiff’s “ stock of stationery, books, toys and other merchandise,” contained in a certain described building. The defendant by answer set up that at the time the fire in question occurred, the plaintiff had in his store, wherein was the property insured, “ gunpowder, to wit: A certain lot of fireworks and like combustible merchandise made of gunpowder,” without the written consent of defendant, and that the fire that destroyed the property insured “ originated in and occurred by the combustion of said gunpowder in the said fireworks contained, and not otherwise.” At the trial it was admitted that the fire “ was caused by the explosion of a bomb thrown from the street among a lot of fireworks in plaintiff’s store.” The clause providing that the policy should be void “ if the risk be increased by any means,” may be laid out of consideration, inasmuch as that defense was not set up in the answer. (Cassacia v. Phoenix Insurance Company, 28 Cal. 630; Kentucky and L. M. Insurance Company v. Southard, 8 B. Monroe, 634, et seq.; Ferris v. N. A. F. Insurance Company, 1 Hill, 71.)

It remains to consider whether the fireworks kept by the plaintiff rendered void the policy, under that provision of it prohibiting the keeping or use on the premises of “ gunpowder.” [180]