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PR 
 
PBOVINGB OF CANABA. 
 town CIRIVI,!* wilt 
 
 } QlTSBSTft »££i€Mt 
 
 APPEAL SIDE. 
 
 H. S. ANDERSON et al, 
 
 APPELLANTS, 
 
 ARD 
 
 THE QUEBEC FIRE ASSURANCE COMPANY, 
 
 REarONDENT. 
 
 PAeTUM OF TBS AFFBUUUnrS. 
 
 The Oaae in which the praMiit Appeal )<» been instituted, was one tried in the Superior 
 Court at Quebec, before a Special Jury, ana in which a verdict was rendered upon certain 
 qae«tionB submittod to the jury, ia oomplianee with the enaotment of the statute regulating 
 trials bj jury in civil oases. 
 
 In parsuanoe of that verdict the Plaintiflii in the Court below moved fbr judgment 
 aocordiug to the conclusions of their declaration, while the Defendants moved for the dis- 
 mioaal of the Plaintiffii' action. A motion was also made for a new trial. By judgment 
 
 fronounoed on the 1st day of September 18S9, tiie Court below rejected the motions of the 
 laintitb, accorded the motion of the Defendints and the aetio«i was thereupon dismissed. 
 From that judgment the Appellants have brought the present appeal, on Uie ground, that 
 tbe verdiot was in their fiivoitr* apd that they «nould eUhei have bad a judgment, or a new 
 trial. 
 
 The Case presents the following facta: The Appelhiuts eflfectod insurance with the 
 B-^gpoadentt, on eevenvl o^jeets, in one polioy, mentioned and described in the policy in 
 tlie following terms, — " On the building only of a house, (having a brick iqppratus tor 
 steaming at ten feet) occupied as a dwelling, situate in tne Shipyard belonging to the 
 assured, fronting on Prince Edward Street, St. Rqchs Suburbs, (Quebec, in other respects 
 isolated, built of and covered with wood. Two hundred and fifty pounds. — On the building 
 used as a forge situate in the said Siiipyard, in a line with Craig Street, bounded on the 
 north by a wooden stable, belonging to the Proprietors of Dwohester bridge, otherwise 
 isolated, Iwilt of and covered with wood, Two hundred and fifty pounds. — On the building only 
 of a st'jro sitnuted on the north- west extremity of the wharf in said Shipyard, hounded ut one 
 •od at about forty feet b^ a wooden shod belonging to the assured, and m rear by Anns treet, 
 boilt of and covered with wood. Four hundred pounds. — On the Wharf on which the 
 above described Store is erected. One hundred pounds." On tlie occurrence of tho loss 
 insured against, by the destruction by fire of the building last mentioned and damages to 
 the whaif, and on breach of the covenants of the Defendants, an action was brought in the 
 usual mode for the recovery of the jE400 insured on the building and jCIOO insured on 
 the wharf. The Respondents met the demand by a plea alleging that Appellants had con- 
 cealed the feet that wirpenters and Joiners were to be pennittedto work in the building 
 insured ; that shavings wore allowed to accumulate therein ; that a stove jpipe was carried 
 through the roof; that fire was used, without the building being providod with a stone or 
 brick chimney. Upon this plea the Appellants took issue and the case was submitted to 
 the jury on questions ftraraed to meet the iocts in controversy, v/hich questions with the 
 answers of the jury are as follows :— 
 
 lo. Was an insurance effected by the Pluntifis with the Defendants upon the Store 
 in the deeUration in this cause described belonging to the Plaintiff for the sum ot four 
 hundred pounds, and upon the wharf therein also desoribod belonging to the Plaintitis tor 
 one hundred pounds, and did the Defendants subsoribo and issne the polioy of insurance in 
 the said dechuwtion in port recited and continue the same as in the said declaration sat 
 foitii? 
 
 2o. Was any part of the property so insured consumed or damaged by fire, and if so 
 when T and (fid suoh fire happen in the manner mentioned in the declaration of the Plain- 
 tifi in this cause fiilad? 
 
8o. Was any and what nmniifiiclory or linznnlima occupntbn carred on in tho i«tori> 
 mentioned in tlio saiil ]>oliov at ti>o tiino tlio »uid jtolicy \vm ottVictcd or hiuco, and when, and 
 did the riaintifi's mention or contcul this tact iioui tlio Defendants? 
 
 4o. At the t'.nioof ofteotinj? the said Tnsnranoo or afterwards, and if go, when, was any 
 trade or occupation cariicd on in tiie wnitl store wliich occaHionod the Udo of fire licat, and 
 corabustihiett, and the malting of BliaviiigK; and waa fire nHod in the said store, and were 
 shavings allowed to acinniuiato theriMii while such trade or occupation was so carried on 
 therein ? and did the said I'laintirt's make known, or on the contrary did they not make 
 known, the said facts to the Dil'e ulants? 
 
 5o. At any time the execution of the said policy, was fire used in the said store without 
 the same being provided with a gond and substantial brick or stone chininoy, and if so 
 when? and was a stove pipe cuiricd thiough the roof of the said store, at any time after 
 the execution of the said policy, and if so, when ? 
 
 60. What is the amount, if any of the Plaintifts' loss by the fire mentioned in their 
 declaration, upon the said store ; 
 
 7o. What is the aniount, if any, of the Plaintiffs' loss, by the tiro mentioned in their 
 declaration, upon the wharf meutioned in this cause and in the said policy of insurance? 
 
 Answers of the Jury : — 
 
 To the Ist question. Yes. 
 
 To the 2nd question. Yes, on the IJlst of March 1857, the said store was wholly con- 
 sumed, and the saiu wliarf i>artially injured by tiro. 
 
 To the 3rd question. None at the time tlie policy was effected, but carpenters and 
 joiners were at work subsequently in the building, and there was no concealment. The 
 fact was not mentioned by the I'laintiti's to the Defendants. 
 
 To the 4th qiiention. To the first part of the question, that is, that part of the question 
 which refers to the time at whieli the policy \v:is i;ranti il ; no triide or oecupiilion was carried 
 on in the said store which occasioned the use of tire heat, or combustibles, or the making of 
 shavings. 
 
 As to the second part of the question by which wo mean that part which refers to the 
 timoat^er the effecting of the said insurance : Shavings were nnide but there is nothing to 
 show that they were allowed to accumulate, and a tia<lo was carried on which occasioned 
 those shavings. In reply to the latter part of this question referring to the fact whether 
 tlie I'laintifiw'nmde known or not, the facts there referred to the Defendants we say " the 
 Plaintiffs were silent." 
 
 To the 5th question. No stove pipe was carried throu|;h the roof, nor was there a j;ood 
 and substantial chimney in the building, but there was a tire occasionally made. 
 
 Four hundred pounds. 
 One hundred pounds. 
 
 To the 6th question 
 To the 7th question 
 And so they say all." 
 
 The result of the case baa been already stated, and the nature of the judgment ou ihe 
 verdict. 
 
 It is clear that the case must now be considered, on the finding of the jury alone, and 
 that the facta which they have certified must be accepted as the facts of the case, to the 
 exclusion of all other evidence. 
 
 Before proceeding to notice these facta and their bearing upon the issue, it is important 
 to impress upon the Court, that by tiio terms of the polio}-, there were effected — 'J\ru 
 separate insurances, one upon the store £iW, and the other upon the wharf XlOO, altogether 
 independent one of the other, and that the Appellants might be entitled to one, or the other, 
 or both, according to circumstances. How the cane may bo affected by this circumstance 
 will be hereafter adverted to. At present the Appellants desire to draw the attciition of 
 the Court to the facts of the case as bearing upon botli insurances, and entitling them to 
 recover the whole amount of their loss. With this view, analysing the verdict of the Jury 
 and oxL'hiding the answers to these questions about wliich no difhculty arises, the answers 
 to til- 'hd, 4th, k oth questions, alone merit consideration. By these answers it is esia- 
 blirihed, tiiat carpenters aniljoiniTs were, for a time, at work in the building; that a trade 
 was carried on which occasioned ahavings ; thatshavings were not allowed to accumulate; 
 that no concealment was practised by the A[)pellant»; that no stove pipe waa carried 
 through the roof as allodged ; .that a fire waa occasionally made, and that the Store was not 
 provided with a good and substantial chimney. 80 that, by a further elimination of un- 
 important matter, two points only of en(|uiry present themselves, namely aa to the employ- 
 ment of caqieuters and as to the uso of fire. 
 
 Now, on the first of these two points it is to be obsorvcil that the building was insured 
 and had been so for a succession of years as a Store in a Shipyard, in cotyunction with a 
 forge and all the other adjuncts of an eatablishuiont devoted to naval architecture. The 
 
Hpociim 
 
 rinkB iiivulvoil in tlio known 
 thu hiMiirorx botiml, inoru 
 of coniniurco and niuiiu- 
 
 i(!liirn, to kndw tlmt aiicli an cniiiloyniont of tho proniities wu« intended and nocoHHary, 
 iiii did tlioy not aHuunid tlmt risk, when iniiurinj? a conipleto establJBliment of wliicli 
 
 ApjiclliintH c'liiini tlmt tlio KcMpoiidcnts injured iii;uin>*t tliti 
 unci nwoKniiry iirocoHHi^H of Mliip building. \Voro not 
 eeiioiiiiily in iv jilnito liko (iiieln'c, tlio Hout of tliirt 
 fu.!l 
 
 this bnililing, to atrcoinodato minor works of Mliip carpentory, such as tho trimming 
 ofmaHtHand yanln, fornind a necessary part? I» it not a logitiniato oonuluHion to draw, 
 from tbo turiuH of thu policy that thiB rink was contemplated ? The Jury have found that 
 tiiero W118 no concealment of tliin cireuniHtimco, and indeed tho very torma of tho policy 
 would indicate that tho iuHuier* were made formally awaro of it wlien undertaking tho 
 rink, it iH well known that iimurance policioB are drawn with special care to protect tho 
 insureni, tlmt tho insured have but a limited control over tho terms of tho ingtruments, 
 and tlmt they reijuiro to be con«trued liberally in favor of tho att8uro<l. For tho InHurcrsin 
 thi!* cAM^, who Imvo Insured these promises for aBUcceasion of years as o Ship Manufactory, 
 to urge such u pleii as tlmt put forward in this case, is calculated to strnke all coufidunce m 
 them, and it would really bo for their advantage that tho Court should refuse to countenance 
 such iittoinpts to escape from responsibility. On tho second point, — tho use of fire, the 
 Court will perceive that the Jury have limited their finding to an omw/owrti use of fire, and 
 this occusioiml use will bu found by tlie Court to have amounted to oiio or two occasions, not 
 for tl'.e purpose of heating, but for the purpose of facilitating some operation of tho work- 
 men, and inuilc by them. This the AppellanU contend does not como within tho con- 
 templated probibition, which applies only to a pernmnent and Imbitual use of fire so as to 
 create n ilitfcrent risk, and the jury have accoi-dingly cNprcsseil their opinion in this matter 
 by the limitation ot'tluir iinding. Had the insurers traced tlie fire to have originated from 
 tl'iis cause, the ciise would have assiiined another complexion, but this is neither alleged 
 nor proviid, it being on tlie contrary established, that there was no fire in the building for 
 hours bclore, an<l the origin of tbo 'fire so far as traced, is supposed to have been external, 
 from the wharf, outside the building, and caused by some incendiary. 
 
 On the subject of tho scparoto insurances ou the wharf and on tho building as already 
 adverted to, the causes which might defeat tho recovery of the insurance on the building 
 have no upplication whatever to the wharf, and tbo verdict establishes merely this — that 
 tbo wharf was insured— was damaged — and that the damage amounts to XIOO. No connec- 
 tion is established between tho two insurances or risks, and if tho evidence bo consulted, 
 it will bo seon that tho fire was communicated from the wharf to the building, and not 
 from the building to the wharf. 
 
 With reference to the motion for a now trial, the Appellants do not ask it, as repu- 
 diating the verdict of tho jury, but being limited to making that motion within a certain 
 <lel;iv,thou'.{I>t it prudent to place it within the power of tho Court to order a new trial in 
 the event of the answers of tlie jury not being considered conelusivly satisfactory on the issue. 
 
 Tliis Court will also perceive from the Judgment itself of the Court below, that that 
 Court liiis committed error, in assuming facts from the evidence to base tho judgment, 
 antl tlmt, in opposition to tho finding of tho jury, whose answers must bo accepted as con- 
 clusive us to fact. 
 
 The Appellants conceiving that the terms of tho policy covered all tho risk as proved, 
 that the jury have negatived all the important allegations of the Respondents tonaing to 
 defeat the Appellants' claims, and have so qualified the other alleptions of the defense 
 as to legally negative those also, look for tho reversal of tho judgment appealed from, 
 and for a judgment awarding to them the full amount of their insurance. 
 
 ANDERSON & PARKIN. 
 
 Attorney for Appelknts. 
 
 Quebec, February, I860.