Phoenix Insurance Company vs. Lawrence et al.

Mut. Fire Ins. Co., 11 Metc. 429, is cited as a decision, that under such a clause, the policy is rendered void by an assignment by the assured to assignees for the benefit of certain of his creditors. But in that case, before the loss occurred the property was sold, under an order of court, in a suit against the assured and his assignees, and the assured had thus been deprived of all interest in it.

It has been repeatedly decided, with reference to policies containing similar clauses, that the policy is not rendered void by a mortgage of the property; (Conover vs. Mutual Ins. Co. of Albany, 1 Comst. 290; 3 Denio, 234; Fulsom vs. Belknap Mutual Fire Ins. Co., 10 Foster, 231;) nor by a sale and conveyance, the grantee having simultaneously re-conveyed to the grantor in mortgage; (Stetson vs. Mass. Mutual Insurance Co., 4 Mass., 330;) nor by a conditional sale; (Tittemore vs. Vermont Mutual Fire Insuaance Co., 20 Vermont, 546;) nor by a contract to sell and convey at a future day, the purchaser agreeing on that day to pay a certain sum and secure the residue of the purchase money; (Masters vs. Madison Co. Mutual Ins. Co., 11 Barb. S. C. R., 624;) nor by a sale under execution, whilst the assured has a right to redeem, at least in the absence of proof that the said right is of no value; (Strong vs. Manufacturer's Insurance Co., 10 Pick., 40.) In most of those cases there had been a technical transfer of the title and interest of the insured; in none of them did the insured retain a greater interest in the property than Lawrence & Co. did in the goods assigned to Casey & Yeager, admitting that the deed had taken effect.

The instruction given at the instance of the plaintiffs, that said deed did not pass the title to the goods, unless "Casey & Yeager accepted of the same and received and took the possession and control of such goods," was clearly erroneous; but was not prejudicial to the defendant, because the deed, though it may have passed the title, did not avoid the insu

rance.

5. The defendant asked for an instruction, "that if any of the articles denominated hazardous, extra hazardous, or included. in the memorandum of special hazards, were kept or stored in

Phoenix Insurance Company vs. Lawrence et al.

said storehouse during the continuance of said policy, that it became void."

It is clear that this should not have been given, because the keeping of those articles, after the issuing of the policy, if prohibited by it, did not, as the instruction assumes, render the policy void, but only suspended it whilst the premises were so used.

6. The defendant asked for an instruction, "that if any articles denominated in the classes of hazards, hazardous, extrahazardous, or included in the memorandum of special hazards, were embraced in the stock at the time of the issuing of the policy, or if the premises were used in keeping or storing any of the above prohibited articles at the time of the fire, then the said policy is void."

There was neither proof nor allegation authorizing that instruction.

This case cannot be placed upon the same footing as that of the Ky. & Louisville Mutual Ins. Co. vs. Southard, 8 B. M., 634, cited by plaintiffs' counsel. The conditions and enumerations of hazards above mentioned, formed parts of the policy, as perfectly as if they had been inserted in the body of it. If therefore the keeping by the plaintiffs of the articles mentioned in the instruction was prohibited by the policy, (whether by provisions in the body of it or annexed to it,) it was not necessary for the defendant to show that the keeping thereof caused the loss or increased the risk. (1 Phillips on Insurance, sec. 866.)

But the keeping of such articles by the plaintiffs, when they obtained the policy, did not render it void, unless they concealed that fact from the defendant.

There was no evidence as to what articles composed their stock at the date of the policy. At the date of the fire the stock embraced dry goods, fancy goods, groceries, boots and shoes, and many other articles denominated in the policy haz ardous or extra-hazardous. If that fact authorized the jury to infer that the stock embraced the same or similar articles at the date of the policy, they might perhaps have also had a right to infer that the defendant knew that the stock embraced

Phoenix Insurance Company vs. Lawrence et al.

those articles, or waived being informed concerning them. (Angell on Fire and Life Ins., sec. 176; 1 Phillips on Ins., sec. 571; Carter vs Bochm, 3 Burrows, 1905.) And if it had appeared to the satisfaction of the jury, that the defendant, when the policy was issued, knew that such articles were embraced in the stock, and were kept by the plaintiffs for sale, as part of their regular business, possibly the issuing of the policy upon that stock of goods authorized the plaintiffs to keep those articles for sale, notwithstanding the prohibition contained in the printed parts of the policy. (Bryant vs. Poughkeepsie Mut. F. Ins. Co., 21 Barbour's S. C. R., 154; Delonguemon vs. Trademan's Ins. Co., 2 Hall, 589; Moore vs. Protection Ins. Co., 29 Maine, 97; Leggett vs. Etna Ins. Co., 10 Rich. Law Report, (S. C.) 202.

But we need not decide these questions, and do not propose now to express any opinion concerning them, because the defendant's pleadings do not allege that any such articles were kept in the store when the policy was issued, or that the plaintiffs made any concealment with reference thereto. Hence the jury would have had no right to declare the policy void, even if it had been proved, that when it issued, the plaintiffs kept those articles and concealed the fact from the defendant.

That part of the instruction which relates to the keeping "of any of the above prohibited articles at the time of the fire," was also erroneous, because the defendant's pleadings charg ed the plaintiffs with having kept certain specified articles without charging them with having kept any others. The defendant, not being presumed to know what prohibited articles were kept by the plaintiffs, was not bound to specify them in its pleadings. But having done so, specifying some, without alleging that any others were kept by plaintiffs, the jury should not have been permitted to consider any except those. specified.

The other instructions we need not notice. Upon the return of the cause the defendant should be permitted, if it chooses, to amend its answer.

Johnson vs. Offutt.

The judgment is reversed, and the cause remanded for a new trial, and other proceedings consistent with this opinion.

CASE 5 PETITION ORDINARY-JUNE 12.

Johnson vs, Offutt.

APPEAL FROM FRANKLIN CIRCUIT COURT.

1. A member of the legislature in attendance upon its session, is not privileged against being served with a summons in a civil action.

2. Under what circumstances it will furnish ground for continuance.

3. Mere change of phraseology in revising the statutes not a sufficient reason to believe that the legislature intended to change the law. (1 Metcalfe 621.)

4. In a suit by an indorsee against the acceptor of a bill of exchange, where the first part of the bill sued upon has been accepted, and protested for non-payment, the production of that part of the bill is prima facie sufficient to entitle the plaintif to a judgment. It is not necessary to file the second part. The defendant must show that some ground of defense exists which displaces the prima facie title made out by the plaintiff. So, where the action is for non-acceptance, it is sufficient to produce the part of the bill protested for non-acceptance. (13 Peters, 205.)

BECK, CRADDOCK and RODMAN, for appellant, cited 2 Revised Statutes, sec. 1 p. 119; 4 Litt., 123; Bolton vs. Martin, 1 Dallas; 2 Starkie, 142; 2 Greenleaf, 150; 7 Johnson, 442.

T. N. LINDSEY, for appellee, cited 1 Chitty's Pleading, top page, 385; 4 Litt., 122; Edwards on Bills, 162, 163; 13 Peters, 205.

JUDGE BULLITT DELIVERED THE OPINION OF THE COURT:

Offutt, the indorsee, sued Johnson, the acceptor of two bills of exchange, in the Franklin circuit court, and the summons was served in Franklin county. Upon the calling of the cause Johnson moved to quash the service of the summons, upon proof that he was a citizen and resident of Scott county, and representing that county as a member of the House of Representatives when the suit was brought, and the summons

4me 19 115 627

Johnson vs. Offutt.

served and at the time of said motion, and that the legislature was then in session. The motion was overruled.

Johnson then moved the court to require the plaintiff to file the second part of the bill of exchange sued on, the suit having been brought upon the first part. But the court refused to require the plaintiff to file the same or to give any account of it.

Defendant then moved for a continuance till the next term, relying upon the facts above mentioned. That motion was overruled, and no answer having been filed, judgment was rendered against him, from which he appealed.

In the case of Catlett vs. Morton, 4 Littell, 122, it was decided that a member of the legislature was not privileged against being served with any process in a civil suit not requiring bail, either by the constitution of 1799 or the act of 1795. (2 Statute Law, 1,111.)

The present constitution is the same upon this subject as that of 1799.

The act of 1795 declared, that "no person or persons shall, under any pretense, directly or indirectly, by any ways or means whatever, arrest, assault, menace, or otherwise disturb the person of a member, during his privilege, except on legal process for treason, felony, or breach of the peace." In Catlett vs. Morton the court apparently attached some importance to the fact, that the act prohibited only a disturbance of the person of a member.

The statute now in force declares, "that the members of the general assembly shall, in no wise, be disturbed or embarrassed in the great and important business of legislation. They shall not, directly or indirectly, by any ways or means, be arrested, menaced or otherwise disturbed during the existence of their constitutional privilege, except on legal process for treason, felony, breach of the peace or misdemeanor." (Revised Statutes, chap. 62, sec. 1.)

It is contended that the word person was omitted from this statute, in view of the decision in Catlett vs. Morton, and for the purpose of prohibiting anything which might disturb the thoughts or agitate the feelings of a member attending the legislature.