The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-02-21
l1IAnsLrTY or FIRE INSURANCE
COMPANIES.
IMPORTANT DECISION OF THE SPECIAL
COURT OF APPEALS OF VIRGINIA.
lgeportcd for the Di-patch.l

| reported for the Di-patch.l
Portsmouth Iasuranee Go Cemgany a. 6r'"6leH d
II Il Co. effect an insurance In the T. l. Co, on
their stock nf gnods. describing them 'ns CONSIST
Wing of such as are usually kept In EMILY
bnsrninG auids, which aro excepted on the back of
the policy, and subjected to higher rate OF insr-
ance It Is shown that du,mfng futhS are rsnaiiy
| by fire caused by the Ignition Of burning fluids.
Held: That the general description Of goods,
abrogate The except N on the policy, and that the in
surance company is not liable.
2. Z. il Co. which consisted OF B: Il W. trading us
=. & Co.. effect al insurance on their stock In the =.
/. Co.. which prohibits any sole or transfer Of e
Interest In the policy without the consent In writing
Of the Insurance company. During the noHcy W.
the concern, leaving q. the sole owner without the
knowledge or cnnscut Of the insurance company.
Held: Thu; this was such transfer rs was pro-
h!tcd by the ln!lcy aud that the Insurance con,-
pany WAS discharged from any liability by reason
| Of such sale and assignment.
% Portsmouth Insurance Company 0s.
BrinIley6 Co.. for" &c.-On the Sd of ALL
gust. 1867. the Portsmouth Insurance Com
puny. in consideration Of the sum OF fifteen
dollars, agreed to insure against loss or
| damage by fire the stock of goods Of A. q.
Brinklcy and James Woodward, trading rs
H. G. Brinkley & Co., for 81 800 for one
year, describing the stock of goods rs "con-
sisting of such as are usually Kept IN a
family grocery" the privilege being al
"lowed of keeping on hand two kegs Of
.spowdcr, to be located where it could be
conveniently removed "-in their store
house, describing it. The policy has clause
aud provision in these words: "And it is
"agrced and declared to be the true intent
land meaning of-the parties hereto that in
cease the above-mentoned premises shall at
"any time after the making and during the
time this policy would otherwise continue
| I" in force, be appropriated and used to or for
"thc purpose of CARRYING on or exercising
''thercin any trade, business, or vocation
dcnomnated hazardous or extra hazard
"ous, rs specified in the memorandum Of
Especial rates, except As herein specially pro-
"vided for, or hereafter agreed to by this cor
operation i'll writing, to be added to or in
"dor=ed Oh this policy, then andfrom thence
''forth so long as the salne.shall he so appro-
"priatcd, applied, or used, these presents shall
'come and be of no effect" Also another
clause to this effect: "And it is agreed that
"this policy is made and accepted in refer
| 'tence to the proposals and conditions hereto
annexed, which arc to be used and resorted
"to in order to explain the rights and obi
"gati0ns Of the parties hereto in all cases not
herein specially provided for" And, also,
| the further provision that the interest Of the
| assured in the policy was not assignable unless
| by the consent of the company, {" manifested
"in writing, and In case Of any transfer or
termination of the interest Of the assured,
either by sale or otherwise, without such
"consent, this policy shall from thenceforth
be void and Of no effect" and under the
| memorandum Endorsed on the policy "pro-
"poSals for insuring houses, buildings,
"stores, ships" DC, after specifying under
| the class as "eXtra hazardous" such trades,
business, and subjects rs came under it,
and suiJecting them to an additional charge
| of fifty cents on every 500, the following
''preSsly prohibited from being deposited,
"Storcd. or kept in any building insured
cor containing any goods or merchandise in
"surcd by this policy, unless ny special con-
"Scnt III writing. indorScd on the policy.
a u kinds Of burning fluids are similarly
"prohbited. (Fan1ily Use Of them allowed.V
This policy was effected 10y the president
Of the Insurance. Company with James
Woodward, Of the firm OF Rrinkiey d Co;
| aad on the trial in the court below evil
lencc Vas offered hy the plaintiffs, Brinklcy
& Co., tending to show that at the time the
policy WAS effected there was, in conSpcu-
Gus place i'll the store 4 cask with "kerosene
| oil " printed on it. On the 30th November
following, and within The time covered by
the policy, the entire stock of goods,
| valued ut $4,000, was destroyed by
fire, occasioned by the accidental igni.
ton Of barrel of burning fluid.
Notice and proof Of the loss and damage
was made to the company, as required by
the terms OF the policy. 1t was also proved
that Brinkley & Co., ut the time of the insu-
rance aud after. kept burning fluid in their
store, and that it was usual TO keep it rs Il
rart of the stock Of Il "family grocery store
in Portsmouth, where this store vas, and
that at the time the insurance was effected
nothing WIS said about keeping burning
fluids; that the burning fluid i'll the store at
the time Of the tire WAS astral oil, which was
considered less dangerous than kerosene oil,
aud that after the fire the Insurance Com
Wny did not object to paying the policy on
| the ground that Woodward hid assigned his
interest in The stock to the other partner
| Bvinkley) and retired from the firm before
the loss, without the consent Of the company
in writing 10 the sale and assignment OF his
| interest in The policy.
The Insurance Company OH its part intro
dnccd evidence 10 -!0H that altcr.t the policy
| was puCCiCtl, uIiNi DElulC lilc lOSo ny ult,
Woodward retired from the co-pirtneIship,
having sod his interest in the stock
insured to Brinkley. leaving Briuklcy the
sole owner of the stock in tho store;
that the sale was without the consent
of the company, and that it had 10 knowl-
| edge of the sale until after the fire; that the
agent Of the company did not know at the
time the policy was effected that Brink.
lev & Co. kept any kind Of burning fluid,
| and that he understood that no burning fluid
was to he kept in the store, although nothing
was said by either party about burning
fluid; that the astral oil, which was the
cause Of the fire, was first keep. in the store
after the insurance was effected, and that it
was highly and dangerously inilammable;
that the privilege Of keeping burning fluids
was not intended to be given by the phrase
! aScd in the policy, "Slock OF goods consist
ting of sucn is are usually kept III q family
grocery" tllat it was not customary for
the company to give to PARTIES assured the
| privilege of keeping burning fluids unless it
| was specially done in words in writing IN
durscd on the policy, as in this case is done
| in relation TO gunpowder.
Afcr this evidence was given, under certain
instructions Of tie court below, which are not
necessary for this report 10 be given here
| the jury found verdict i'll favor of Brink
| Icy for the whole amount of the policy, with
| interest and costs; upon which verdict the
court entered Judgment; and from this
Judgment thr Insurance Company appealed
70 the Supreme Court OF Appeals. The
cause was assigned to and decided BY the
Special Court Of Aprcals--Judge NinstieId,
| president, delivering the unanimons opinion
of that court The learned Judge. sitter re-
citing the Instructions of the court below,
| saws I" The prnprigtv Of the Instructions
| ~, i,,..t,rc, pf tl,,. ,,f