Opinion
Argued September 15th, 1871
Decided November 10th, 1871
A.J. Parker, for appellant. Jacob B. Decker, for respondent.
It appears by the findings of the referee, that Campbell, the vendee of the property insured, by the contract of sale, agreed to pay the expense of insuring the factory and saw-mill; that the plaintiff did insure the property, and pay the premiums therefor, and charge the same to Campbell; and that by so much was lessened the amount paid by him on the purchase-price. It appears from the testimony, that though Campbell did not know of this, yet that his brother, who acted for him with the plaintiff in adjusting, from time to time the payments and indorsing them on the contract, did settle the dealings which included these items of expense for insurance; so that the premiums of insurance were in fact paid by Campbell, under an agreement so to do. It follows, then, that the insurance was really one for the benefit of Campbell. ( Holbrook v. Am. Ins. Co., 1 Curtis C.C., 193, and cases cited.)
In such case, the defendants had no right of subrogation, even if they issued the policy, without notice of the contract of sale. ( Benjamin v. Saratoga Ins. Co., 17 N.Y., 415; Kernochan v. N.Y. Bowery Ins. Co., id., 428.)
Though the plaintiff's especial insurable interest was that of vendor, holding an equitable lien on the property for the security of the purchase-money, yet he held also the legal title, and this made it competent for him to cover, not only his especial interest in the property, but the property itself. ( Holbrook v. Am. Ins. Co., supra; see, also, Tyler v. Ætna Ins. Co., 12 Wend., 507; S.C., 16 id., 385; 1 Phillips on Ins., 347, sub-sect. 640; Angell on Ins., §§ 67, 185, 186, and note.)
And this insurable interest existed in the machinery as well as in the buildings; for though there was a contract of sale, it was executory. The title had not passed, and though Campbell went into possession about two years after the policy was issued, he had no right to remove the machinery, without the consent of Wood. There was never such a delivery of it to Campbell as gave him title. Wood still retained on it a lien for purchase-money, and a right, on non-payment to resume exclusive possession. He had, then, an insurable interest in it. ( Clinton v. Hope Ins. Co., decided in this court 4th April, 1871; see, also, Burt v. Dutcher, 34 N.Y., 493; Tallman v. Atlantic Ins. Co., 3 Keyes, 87.)
The point made by the defendants, as to the use of kerosene, does not seem to be before us. There is no finding in reference to it. There is no request to find, which the referee has refused. The defendants' exception on this matter is two-fold. 1st. That the referee omitted to find, that the fire was caused by the use of an inflammable liquid. 2d. That the referee omitted to find as a conclusion of law, that the policy was void by a breach of the warranty against the use of such inflammable liquid. As to the first, it suffices to say, that there is neither finding nor proof that the use of an inflammable liquid caused the fire. As to the second, there is no finding of fact that kerosene or any inflammable liquid was used, and a conclusion of law that there was a breach of warranty from its use would be unfounded. Again, though it is proven that kerosene was used in the factory, that substance is not named in the conditions annexed to the policy. It is only designated, if at all, by the phrase, "any other inflammable liquid." This phrase follows the mentioning by name of camphene, spirit gas, phosgene, etc., and it noscitur a sociis. To be warranted against, the liquid must be inflammable, as are those enumerated articles. But there is no finding or proof of the character of kerosene in this regard. The defendants ask us to take judicial notice of its qualities, and that it is in its nature like those. If we do this, we are to know, that they are not only so slowly inflammable as to give harmless light by their gradual combustion, but that they are also suddenly explosive, and thus dangerous and harmful. It is this last characteristic inflammability, which is warranted against, in the classes of hazard upon the back of the policy.
But judicial notice comes in the place of proof. It is to be exercised by a tribunal, which has the power to pass upon the facts. That, this court has not in this case. We may not when we have not the findings of fact in review, for the purpose of reviewing the judgment of a referee, take judicial notice of the existence of a fact, which has not been found by the court below, nor upon which a finding has been refused. In the case in hand, that would be to put this court in the place of the referee, and to find a fact, which he was not requested to find, which he has not found, and to his omission to find which, no exception has been taken.
Nor do we deem, that judicial notice may be taken that in all cases, the article of kerosene is explosive.
The legislature has in effect declared, that there is a degree of purity to which it may be brought, and at which it may be kept on sale in cities with comparative safety. (Laws of 1865, chap. 773, § 3; laws of 1866, chap. 872.) The matters of which judicial notice may be taken, are those which must have happened according to the constant and invariable course of nature (Starkie on Ev., 9 Am. ed., 735 margin, 658), or are of such general and public notoriety, that every one may fairly be presumed to be acquainted with them. (1 Phillips on Ev., 5 Am. ed., 619 margin, 514, chap. 10 § 1.) The action of the legislature seems to assume, that it is not inevitable nor a matter of general and public notoriety, that every grade and quality of this article is explosive. So the power and right to take judicial notice may not be here invoked, and it was incumbent upon the appellants, to make proof if they could, that the kerosene used in the building insured was in fact inflammable; i.e., explosive.
There is the same difficulty with the point made by the defendants upon the second paragraph of the tenth condition. There is no finding upon the matter by the referee, nor any request for him to find which he has disregarded. Apart from this, however, the point would be well met by the considerations previously advanced, that the premiums being practically paid by Campbell, under an agreement so to do, and the policy, in fact, taken for his benefit upon the property, rather than upon the debt against him, it is not held as a collateral security within the meaning of the condition.
The testimony admitted by the referee against the objection of the defendants, does not seem to us to affect the questions upon which the case turns, nor to have had an influence in its determination harmful to the defendants.
The judgment of the court below should be affirmed with costs to the respondent.
All concur.
Judgment affirmed.