WHEELER v. INS. CO

Marston Eastman and J. S. H. Frink, for the plaintiff. Keeping or using naphtha implies an habitual or continuous act, not an occasional or single one. Dobson v. Sotheby, 1 Moody M. 90; Mears v. Humboldt Ins. Co., 92 Pa. St. 15; Williams v. N. Eng. Ins. Co., 31 Me. 223; Williams v. F. Ins. Co., 54 N.Y. 569; May Ins., s. 241; Webster's Dictionary.

S.C. Eastman, for the defendants. The rule stated in Glen v. Lewis, 8 Exch. 607 (1853), is the present English law; and the earlier cases, Dobson v. Sotheby, 1 Moody M. 90 (1827), and Shaw v. Robberds, 6 A. E. 75 (1837), have not been understood to establish a different one. One or both of the earlier cases are cited in Mayall v. Mitford, 6 A. E. 670 (1837); Quin v. Nat. Ins. Co., 1 J. C. 316 (1839); Faulkner v. Cen. Ins. Co., 1 Kerr 279 (1841); Grant v. Howard Ins. Co., 5 Hill N. Y. 10 (1843); Pim v. Reid, 6 Man. Gr. 1; Jennings v. Ch. Ins. Co., 2 Denio 75 (1846); Boardman v. N.H. Ins. Co., 20 N.H. 551 (1847); Barrett v. Jermy, 3 Exch. 535 (1849); Billings v. Toll. Ins. Co., 20 Conn. 139; O'Niel v. B. Ins. Co., 3 N. Y. 122; Williams v. N. Eng. Ins. Co., 31 Me. 219 (1850); Clark v. Man'f'rs' Ins. Co., 8 How. 235; Gates v. M. Ins. Co., 5 N.Y. 469 (1851); Wall v. E. R. Ins. Co., 7 N.Y. 370 (1852); H. P. Ins. Co. v. Harmer, 2 Ohio St. 452 (1853); Foye v. AEtna Ins. Co., 3 Allen (N. B.) 29 (1854); Loud v. C. Ins. Co., 2 Gray 221; Lee v. How. Ins. Co., 3 Gray 583; Sillem v. Thornton, 3 E. B. 868; Miller v. W. Ins. Co., 1 Handy 209; Stokes v. Cox, 1 H. N. 320 (1856); Macomber v. How. Ins. Co., 7 Gray 257; Leggett v. AEtna Ins. Co., 10 Rich. 202; Vogel v. Peo. Mut. Ins. Co., 9 Gray 23 (1857); Girard Ins. Co. v. Stephenson, 37 Pa. St. 293 (1860); Mayor v. Ham. Ins. Co., 10 Bosw. 537 (1863); Lyman v. State Mut. Ins. Co., 14 Allen 330 (1867); Gove v. F. Ins. Co. 48 N.H. 41 (1868); Mickey v. Bur. Ins. Co., 35 Iowa 174 (1872); Mears v. Hum. Ins. Co., 92 Pa. St. 15 (1879). Worcester v. W. Ins. Co., 9 Gray 27, and Wetherell v. City Ins. Co., 16 Gray 276, agree with the other Massachusetts cases.

Duncan v. Sun Ins. Co., 6 Wend. 488 (tried in 1829 and decided by the supreme court in 1831), Langdon v. N. Y. Eq. Ins. Co., 1 Hall 226 (1828) and 6 Wend. 623, and Delonguemare v. T. Ins. Co., 2 Hall 589, have been followed in New York and some other states, and Dobson v. Sotheby and Shaw v. Robberds have been cited as sustaining their definitions. City Ins. Co. v. Corlies, 21 Wend. 367 (1839); Grant v. How. Ins. Co., 5 Hill N. Y. 10 (1843); O'Niel v. B. Ins. Co., 3 N.Y. 122 (1849); Gates v. M. Ins. Co., 5 N.Y. 469 (1851); Wall v. E. R. Ins. Co., 7 N.Y. 370 (1852); Williams v. F. Fund Ins. Co., 54 N.Y. 569 (1874); Rafferty v. N. B. Ins. Co., 18 N. J. Law 480 (1842); Moore v. Pro. Ins. Co., 29 Me. 97 (1848).

There is a class of cases in which warranties have been held to be modified by the description of the thing insured, or of the trade carried on, it having been held in some jurisdictions that essential or customary parts of a stock in trade, or essential or customary use in a process which was expressly recognized, constitute an exception to the general prohibition. The general language of the stipulations has been succeeded by the particular language of this policy, and that, too, doubtless for the express purpose of responding to the suggestion thrown out by the courts in the early cases. This policy does not provide, as in Dobson v. Sotheby, against "storing," nor, as in Shaw v. Robberds, against a change of trade. The words are "keep or use;" and the articles objected to are not classed, but named specifically. The words used are not in any sense technical; they are words of every-day use, which the most unlettered layman would readily understand. It is true, that, by a majority of the court, it was held in New York that "keeping" and "storing" are nearly synonymous. Hynds v. S. Ins. Co., 11 N.Y. 554. It is admitted that "keeping" was introduced after and in consequence of the decision in N. Y. Eq. Ins. Co. v. Langdon, but they say that it was meant to apply to goods kept for retail which are not covered by "storing." The policy there suspends the operation of the contract so long as the premises are "appropriated, applied to, or used for the purpose of either storing or keeping." The language of the case at bar is more definite, so that the decision, if binding, would not be conclusive. So, in like manner, in Mears v. Hum. Ins. Co., 92 Pa. St. 15, it is held that there is no difference between "keep" and "have," and that both together mean the same as "store." This is an application of language that would have surprised the judges, both in England and in New York, who first set in motion the now accepted definition of "store." It is, moreover, contrary, though this is denied by the court, to the ruling of the same tribunal in Birmingham Ins. Co. v. Kroegher, 83 Pa. St. 64.

Length of time is not necessary to constitute a keeping. Thus, on an indictment for keeping and maintaining a tenement used for the sale and keeping of intoxicating liquors, the court instructed the jury that "it would be sufficient to prove that the defendant, even for an hour, had the charge or control of the premises as clerk or agent of the proprietor." Com. v. Maroney, 105 Mass. 467 note; Com. v. Kimball, 105 Mass. 465.

Where, in an application, questions are asked which are answered truthfully as to then existing facts or as to habitual custom, when the question is one which points to custom, though perhaps in terms more comprehensive, the courts have sometimes interlined limiting words if the application is made a part of the contract. Williams v. N.E. Ins. Co., 31 Me. 219, is a case of this kind. The application, in answer to an inquiry as to heating, said, "No stoves." Shepley, C. J., says, — "The language of the interrogatory and answer had reference to the habitual use of stoves, and not to the temporary use of one for a purpose connected with the completion of the building." To this he cites Dobson v. Sotheby and Shaw v. Robberds. "The statement was true when made, and when considered as a contract or warranty that no stove should be used as they ordinarily or habitually are in dwelling-houses, continued to be true to the time of the loss." To the same effect is Van Valkenburgh v. Am. Pop. Life Ins. Co., 70 N. Y. 605. The last case on this subject in New York, however, states the effect of a warranty more in accordance with the true construction. Matson v. F.B. Ins. Co., 73 N.Y. 310. The defendants knew the dangerous nature of the article, and excepted it from the risk they were willing to assume. The language is plain. As is said in Glen v. Lewis, there is no case which establishes the law that will interpolate "habitual" except Mears v. Hum. Ins. Co., and that is not justified or supported by the authorities, nor by the sound interpretation of the law.