the question of the right, under the Wisconsin Constitution, of taxpayers to bring actions, and seemed to hold that in some cases a taxpayer may, if the attorney general refuses, bring an action in the name of the state on his own relation originally in the supreme court under the above section of the Constitution, and that in that case the action is the same as if it were brought by

enjoin the secretary of state from enforcing
the primary election law, and from auditing
claims for expenses under it. This case is
referred to in the Bolens Case as not dis-
cussing the question of jurisdiction.
B. B. B.

BELONIE BOUCHARD

V.

MUTUAL FIRE INSURANCE
COMPANY.

(- Me.

Insurance

92 Atl. 899.)

gasolene

keeping or

the attorney general, and as if the state MAINE SUPREME JUDICIAL COURT. were the real plaintiff, and that the court would have authority in that case to prevent a misapplication of funds by a state officer, but seemed to consider that it would DIRIGO be only in cases of great exigency, that the court would grant such an injunction, stating that it did not find it necessary to decide whether the alleged illegal expenditure of funds alone presented a case of such exigency as to justify the use of the original jurisdiction of the court to prevent such an expenditure; this being apparently on the ground that there were other features in the statute which, if invalid, might have authorized the court to act. The theory was that actions of this kind brought by a taxpayer were not in any sense taxpayers' actions in the usual sense, and that taxpayers' actions in the usual brought in an inferior court, could not lie against the state officer, as, if it were necessary for any action to be brought against him, the supreme court had power to authorize an original action to be brought in that court upon the relation of a citizen if the attorney general would not act.

sense, as

In State ex rel. Lamb v. Cunningham, 83 Wis. 90, 17 L.R.A. 145, 35 Am. St. Rep. 27, 53 N. W. 35, the supreme court sustained the right of a private citizen and taxpayer, after his application to the attorney general to proceed had been refused, to bring an action in the supreme court on his own relation in the name of the state, to restrain the secretary of state from putting into effect an apportionment act which the court held to be unconstitutional.

In State ex rel. Rosenhein v. Frear, 138 Wis. 173, 119 N. W. 894, where a taxpayer brought a petition to commence an action in the supreme court of Wisconsin for the purpose of preventing payment of expenses out of the state treasury, incurred or which might be incurred, by a joint committee of the legislature under a resolution clothing such committee with authority to investigate a certain matter, the court, in denying the application on the merits, said: "If the secretary of state and state treasurer were about to take such action as to disburse state moneys for illegitimate purposes, it would be within the competency of this court, in the exercise of its original jurisdiction, to entertain an equitable action to prevent it on the initiative of a taxpayer; the attorney general refusing, on proper request, to act in the matter."

In State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961, 20 Ann. Cas. 633, the court dismissed an action by a taxpayer brought in the circuit court after refusal to act by the attorney general to

|

using. 1. The use by a farmer of a gasolene engine in his barn as part of an outfit for threshing his grain is not within the operation of a provision in a policy of insurance on the property making it void if burning the premises. fluids are kept or used by the insured on

Same

use.

Note.

(February 3, 1915.)

waiver of

Fire insurance: use of engine on farm premises as violation of general provision in fire policy against increase of risk or specific provisions relating to engines.

This note does not cover the question of what constitutes a waiver of provisions alleged to have been violated by the use of engines; nor the question as to the effect of a temporary use of an engine which had ceased before the loss in question.

Generally as to the effect of a temporary condition which ceased before loss, under general provision against increase of risk, or specific provision against certain conditions, see notes to Sumter Tobacco Warehouse Co. v. Phoenix Ins. Co. 10 L.R.A. (N.S.) 736; Port Blakely Mill Co. v. Springfield F. & M. Ins. Co. 28 L.R.A. (N.S.) 593; Clute v. Clintonville Mut. F. Ins. Co. 32

Provisions as to increase of risk, or change to be made with reference to the character

Cornish, J., delivered the opinion of the court:

24 Tex. Civ. App. 574, 59 S. W. 916; Barnard | 143 Wis. 114, 139 Am. St. Rep. 1083, 126 v. National F. Ins. Co. 27 Mo. App. 26; N. W. 669; Farmers' Mut. F. Ins. Co. v. Washington Mut. Ins. Co. v. Merchants' & Moyer, 97 Pa. 441; Adair v. Southern Mut. Mfrs. Ins. Co. 5 Ohio St. 487; 13 Am. & Ins. Co. 107 Ga. 297, 45 L.R.A. 204, 73 Eng. Enc. Law, 293; Whitney v. Black Am. St. Rep. 122, 33 S. E. 78. River Ins. Co. 72 N. Y. 117, 28 Am. Rep. Mr. S. W. Gould for defendant. 116; Heffron v. Kittanning Ins. Co. 132 Pa. 580, 20 Atl. 698; Girard F. & M. Ins. Co. v. Stephenson, 37 Pa. 293, 78 Am. Dec. 423; Crane v. City Ins. Co. 2 Flipp. 576, 3 Fed. 558; James v. Lycoming Ins. Co. 4 Cliff. 272, Fed. Cas. No. 7,182; Washington F. Ins. Co. v. Davison, 30 Md. 91; McKeesport Mach. Co. v. Ben Franklin Ins. Co. 173 Pa. 53, 34 Atl. 16; German Ins. Co. v. Hart, 16 Ky. L. Rep. 344; Siemers v. Meeme Mut. Home Protection Ins. Co. or alteration in the work or business carried on, and not to a mere temporary and casual act, and it was held not to be violated by the use for but one day of a steam engine in connection with a grain crusher.

A like view was taken in Adair v. Southern Mut. Ins. Co. 107 Ga. 297, 45 L.R.A. 204, 73 Am. St. Rep. 122, 33 S. E. 78, where a provision declaring that the policy should be forfeited "by any change in the use or condition of the building, including additions or repairs, or by the erection of other buildings, or in any other manner by which the degree of the risk is increased, unless due notice is given to the company and a new agreement is entered into," was held to apply to such changes as were of a permanent nature, and not to mere temporary changes in the use and occupation of the premises; and it was accordingly held that a mere temporary use of a machine for threshing grain for a few hours on the premises would not per se work either a forfeiture or suspension of the policy. But see infra as to this case.

In Davis v. Western Home Ins. Co. 81 Iowa, 496, 10 L.R.A. 359, 25 Am. St. Rep. 509, 46 N. W. 1073, however, a policy insuring corn in cribs, which provided that it should be void in case of any change in the exposure by the erection or occupation of adjoining buildings, or by any means whatever in the control or knowledge of the insured, was held to be avoided by the use with the insured's permission of an engine and boiler near the corncribs for the purpose of furnishing power to a corn sheller, the court taking the view that the general provision forbidding exposure by any means whatever did not have regard to the form, substance, use, or character of the thing creating the exposure, but included anything in which fire was used SO as to be dangerous, although it was not of a permanent character the same as buildings.

And in Orient Ins. Co. v. McKnight, 96 Ill. App. 525, where it was contended that the hazard had been increased by the use of a steam sheller in violation of the terms of a policy covering corn in cribs which stood some distance from each other, it

Action on a fire insurance policy for loss of plaintiff's farm buildings and personal property. The presiding justice ordered a nonsuit. The main issue is whether the fact that the fire was caused by the operation of a gasolene engine by the plaintiff for threshing grain, in the barn floor, avoided the policy either because it violated the appeared that the engines use corncobs for fuel, and that the parties were fearful of fire, and for the first week kept a watchman at night, and that several times during a period of two weeks fires had caught. The court said that if by increase of hazard was meant increasing liability to take fire and to be destroyed by fire, they could not doubt that the record showed that the hazard was increased. The condition as to increased risk, however, was held to have been waived in this case, and the decision upon the latter point was affirmed in 197 Ill. 190, 64 N. E. 339.

In Adair v. Southern Mut. Ins. Co. supra, construing a provision of the Code that the assured is bound to ordinary diligence in protecting the property from fire, and that gross negligence on his part will relieve the insurer, but that simple negligence by a servant or the assured will not relieve the insurer, with reference to another provision, that any change in the property or use to which it is applied whereby the risk is increased shall avoid the policy, it was held that the insurer is not liable if a loss directly results from a temporary change in the use of the property by the assured, or one to whom he had intrusted the entire custody of the property and given full freedom in its use, where such change so materially increases the hazard as to make it apparent to a person of ordinary intelligence and of reasonable or ordinary care and diligence that the danger from fire was thereby enhanced.

And it was held in that case that there was sufficient testimony to require the submission to the jury of the issue whether or not there had been such negligent use of the property as to materially increase the risk of insurance and cause the damage complained of, where there was evidence that a threshing engine which had no spark arrester was placed about 85 feet from the house which burned for the purpose of threshing wheat; that the separator was placed about half way between the engine and the house; that as the threshing progressed straw gathered near the separator and some within a few feet of the dwelling; that the threshing required about two

"prohibited articles" clause or the clause | since the spring of 1908, and had been inagainst increase of risk.

1. Prohibited Articles.-The standard policy contains this provision, among others: "This policy shall be void . . if camphene, benzin, naptha, or other chemical oils or burning fluids shall be kept or used by the insured, on the premises insured" -with certain exceptions not material here. It is conceded that gasolene is within the prohibited list, and the crucial question is whether, under the facts of this case, it was "kept or used" within the inhibition of the contract. The record shows that the plaintiff had lived on this farm in Skowhegan

sured by the defendant during that time, the policy in suit being a renewal of a former policy in the same company that each year he had employed men to thresh his grain by the use of a gasolene engine in precisely the same manner as on the day of the fire; that these men traveled from farm to farm doing the work, and that practically all of the grain in that community is threshed in the same manner, the engine being placed within or without the barn according to the location of the grain; that in 1912 the plaintiff, with one Herbert, had purchased the engine and had hours, and when it was commenced there tenant provided that the insurer should not was a gentle breeze blowing from the house: be liable for any loss "happening in consethat when the work was about half over quence of an invasion or from any there was an unexpected, sudden, and un-locomotive engine or engines," and further usually violent gust of wind which blew provided that the policy should be avoided from the engine towards the house; that in case of any material increase of risk to at about the same time fire was noticed the property insured, or in case of material in the straw; that despite all efforts the alterations. The property was burned by straw was carried against the house, setting reason of sparks from a steam thresher, it afire; that a threshing machine of this and the insurer claimed that the use of same character had been used by the owner such machine constituted a material inof the one in question for ten or fifteen crease of risk and avoided the policy beyears, and no fire had before resulted from cause of a change of circumstances resultits use. ing in change of risk. The case was tried on an agreed statement of facts in which it was stated that the fire was communicated to the buildings "by sparks from a steam threshing machine used on the premises by a tenant for the purpose of threshing." The statement of facts, however, contained no statement that the assured himself used the engine either in or near to the insured buildings, nor was it stated that his tenant introduced the engine into the barn or corn house or under the sheds and used it for the purpose of threshing.

In Siemers v. Meeme Mut. Home Protection Ins. Co. 143 Wis. 114, 139 Am. St. Rep. 1083, 126 N. W. 669, the jury found that the risk was not increased within the meaning of a clause providing for forfeiture if the risk was increased by any means, because the threshing engine which was being used to run a feed cutter was operated for five or six minutes without the spark arrester; and the court held that they would not be warranted in setting the finding aside, there being little evidence on either side bearing on the question, and none to show that the removal of the spark arrester was the proximate cause of the fire.

In Farmers' Mut. F. Ins. Co. v. Moyer, 97 Pa. 441, where an insured barn was burned by reason of the explosion of a boiler used with a threshing engine which was placed near the barn, it was held that the question whether the use of the machine in the vicinity of the barn constituted an increase of risk was properly left to the jury.

And in Long v. Beeber, 106 Pa. 466, 51 Am. Rep. 532, where the insured farm buildings were burned by reason of the use of a steam engine for threshing purposes, and the policy provided that it should be void if the premises should be occupied or used so as to increase the risk, or the risk should be increased by the erection or occupation of adjoining buildings or by any means whatever, it was held that the question whether the risk was increased by the temporary use of the steam thresher was properly submitted to the jury.

In Martin v. Mutual F. Ins. Co. 45 Md. 51, a policy issued on premises which the insurer knew to be in the possession of a

It was conceded that the exception as to locomotive engines did not include a threshing engine, and it was held that there was no condition of the policy and no principle of insurance law under which the insurer could be relieved from liability for the loss. The court said that, in deciding the case upon the facts, they did not wish to be understood as intimating that a different result would follow if the statement of facts showed that the tenant had actually introduced the engine into the building and used it there, but stated that they expressed no opinion on that question.

Specific provisions with reference to engines.

It has been held that a provision in a policy covering farm buildings, permitting the insured to use a steam thresher with an efficient spark arrester in good working order for the purpose of threshing crops, does not forbid the use of a steam engine in connection with a grain crusher, but that such provision is directed entirely to the use of a steam thresher and engine therewith. Johnston v. Dominion Grange Mut F. Ins. Co. 23 Ont. App. Rep. 729.

In the first place, the words themselves usually import something more than tempo- The verb "to use" in this connection, and rary possession or possession for a tem- in collocation with "keep," naturally sugporary purpose. "To keep" implies some- gests the same idea of employment on more thing more than merely to have. It carries than a single occasion. It implies the custowith it the idea of continuance and dura-mary or habitual rather than the accidental tion. Such is its common acceptation, as or the temporary. These definitions have the

And in Siemers v. Meeme Mut. Home | there was no evidence that any other kind Protection Ins. Co. supra, where a fire ap- of engine was better adapted to general parently resulted from the use of a steam farm purposes than this one. engine generally used for threshing, to drive a feed cutter, it was held that a provision that the insurer should not be liable for loss caused by the use of steam-threshing machines unless a ladder was kept between the engine and the separator, and one bar rel of water and two pails were kept between the engine and the barn, and a watchman was always in attendance, did not prohibit the use of threshing-machine engines for other purposes than threshing, but forbade their use in the ordinary operations carried on around farm buildings unless the required precautions were taken.