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ST. PAUL FIRE & MARINE INS. CO. V. BACHMANN, 285 U. S. 112 (1932)

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U.S. Supreme Court

St. Paul Fire & Marine Ins. Co. v. Bachmann, 285 U.S. 112 (1932)

St. Paul Fire & Marine Ins. Co. v. Bachmann

No. 311

Argued January 12, 1932

Decided February 23, 1932

285 U.S. 112

Syllabus

A fire insurance policy contained a warranty exempting the insurer from liability for loss occurring while the hazard was increased by any means "within the control or knowledge of the insured," and another warranty exempting the insurer if loss occurred while there were kept on the premises certain prohibited articles, including gasoline. A rider altered this prohibition to the extent of permitting gasoline to be kept and used for the purpose of bottling automobile oils "or for other mercantile purposes not more hazardous." Fire occurred during occupancy by a tenant engaged in the illegal manufacture of intoxicating liquor who kept on the premises a large quantity of gasoline for use in that connection.

Held:

1. A determination of the hazard involved was essential to maintaining the defense under either warranty. P. 285 U. S. 116. chanroblesvirtualawlibrary

Page 285 U. S. 113

2. The increase-of-hazard warranty is not violated unless there is increase of hazard within the knowledge and control of the insured; the prohibited articles warranty may be violated irrespective of the knowledge and control of the insured. P. 285 U. S. 116.

3. Whether the business of operating moonshine stills was or was not more hazardous than that of bottling automobile oils was a question of fact for the jury. P. 285 U. S. 117.

4. If the illicit business was more hazardous, the prohibited articles warranty was violated. Id.

5. An allegation in a specification of defense under the prohibited articles warranty, charging the insured with knowledge and control, is to be regarded as surplusage. Id.

6. The burden of proof was upon the insurer to show that the occupancy was not one to which the gasoline permit extended. Id.

7. The court could not take judicial notice that the operation of the stills was more hazardous than bottling automobile oils or say that it was not a mercantile purpose. P. 285 U. S. 118.

8. The defendant's failure to ask proper instructions does not cure the error in instructions which were given, and to which exceptions were taken. Id.

49 F.2d 158 reversed.

Certiorari, 284 U.S. 605, to review a judgment affirming a judgment against the insurance company in an action upon a policy of fire insurance.





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