
    John M. Carroll, as Executor of the Will and Trustee of the Estate of Davis L. Carroll, Deceased, Respondent, v. The Home Insurance Company of the City of New York, Appellant.
    
      Expert — testimony as to increased hazard from the use of insured premises as a saloon.
    
    In an action brought to recover upon a policy of fire insurance covering a building insured as a dwelling, providing that it should be void “ if the hazard be increased by any means within the control or knowledge of the insured,” in which the issue litigated is" whether the use of the premises in part as a saloon increased the hazard, insurance agents sworn as experts, but not shown to have any personal knowledge of the premises, should not be permitted to give an opinion upon this subject, not based upon a hypothetical question embracing the material facts appearing in the case.
    
      Semble, that the jury are quite as capable of forming a correct judgment from the facts bearing upon such a question as experts.
    Appeal by the defendant, The Home Insurance Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 20th day of February, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the IJth day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant issued a policy of insurance, against loss by fire, upon a “ two-story frame building and additions thereto, occupied as a dwelling; ” and the policy contained this provision : That the policy should be void if thereafter “ the hazard be increased by any means within the control or knowledge of the insured.” The premises, at the time of insurance, were occupied by tenants as a dwelling-house, and were in charge of an agent of the mortgagee to whom the policy provided payment, in case of loss, should be made. A short time after the issuance of the policy, the agent leased the premises to another tenant, by a written lease, without limitations as to the manner of occupation; and the tenant occupied a portion of the building for a short space of time as a beer saloon, and for a short space of time as a boarding house, though during the whole time the principal portion of the building was occupied by the tenant as a dwelling house. No fire occurred while any portion of the building was occupied as a saloon or boarding house. Some months after the occupation for saloon and boarding house- purposes had' ceased, and while the entire premises were used as a dwelling house, as at the date of the policy of insurance, the fire occurred. Proof of loss was made in the first instance by the mortgagee in possession. The company demanded that proof should be made by the insured, Mary Morrison ; and, at some expense to t.he plaintiff, this was also procured.
    
      George Richards, for the appellant.
    
      Fred. Linus Carroll, for the respondent.
   Kellogg, J.:

Two questions seem to be presented on this appeal:

The appellant claims that the learned trial justice erred in submitting to the jury, upon the proof made, the question .of waiver by defendant of the provision as to the forfeiture of the policy upon an increase of the hazard. There does not seem to be any proof in the case which in any view would justify a finding by the jury of any waiver ; but no objection was made upon the trial to the submission of that as a question;. nor is there in the case any exception to the charge' to the jury on that subject. This point should have been taken in the trial court to be available on appeal.

The other question relates to the exclusion of evidence of experts on the subject of the increase of hazard, and this presents a matter of more difficult solution.

The defendant produced a witness, Hayes, who was a fire insur-. anee agent of sixteen years’ experience. He was asked the rate of insurance upon dwellings during the life of this policy in the vicinity of the premises insured ; and also was-asked the rate of insurance upon a “building that contains a saloon.” He was also asked if the hazard would be increased by the use of premises as a saloon which had been insured as a dwelling. He was also asked what would be the rate of insurance if these premises were used as a dwelling. He was- asked if the-use of a building, situated as this vras, as a saloon, would increase the hazard above its use as a dwelling house. He was asked if the hazard in' connection with the insuring of a saloon was greater than that in connection with the insuring of a dwelling house. All these questions were objected to and the answers thereto excluded, and the defendant excepted to the rulings. ■ These questions were all very general in their nature; and the information to be derived from the answers was of a very general character on tlie subject of fire insurance. The witness was not shown to have any personal knowledge of the premises in question. It was not stated-to him'1 just in what way the buildings in fact had been occupied. He obviously was not possessed of the necessary data to form an opinion as to whether the hazard by the manner of occupation had been increased, or otherwise. He was asked no hypothetical question which embraced all or any of the material facts touching the actual occupation or change in occupation of these premises. If this case is one in which an expert in insurance matters knows or can know more than the ordinary man of intelligence, as to the hazard or danger from fire being increased or diminished by the. manner of occupation, then the opinion of the expert is or may be helpful to the ordinary mind, and is admissible though not controlling. (Jefferson Insurance Co. v. Cotheal, 7 Wend. 72; Hobby v. Dana, 17 Barb. 111; Cornish v. Farm Buildings Fire Ins. Co., 74 N. Y. 295; Van Wycklen v. City of Brooklyn, 118 id. 429 ; Frace v. N. Y., L. E. & W. R. R. Co., 143 id. 188.) The expert, ^however, should be confined to the subject-matter in hand; and his opinion should relate to the subject-matter. It is quite easy to understand that a dwelling house might be occupied as such in a manner to make the hazard from fire far greater than if the same building were occupied in part as a beer saloon. There may be a general rule which governs insurance companies in placing policies by rating based generally on the character of occupation, but such rating ought not to be taken as a guide in a particular case where the precise question is to be decided whether the hazard in the particular case was or was not increased. This is the test — actual increase of danger from fire. The test is not the rating established by insurance companies. If it were so, it would be so expressed in the policy.

I am inclined to the opinion that the ordinary- juryman, in such a test as this case presents, is quite as capable of forming a correct judgment from the facts as was the insurance - agent offered as an expert. There does not appear to be here any question of science or skill. It is the simple question of fact upon which one intelligent mind is as-good as another, and may form as good a judgment in a given case. The fact that the building did not burn when partly occupied as a beer saloon or hoarding house, and did bum when occupied as a dwelling only, would seem in this case, to refute the contention that its use as a dwelling was the lesser risk. I think the exclusion of answers to the questions asked was not erkor, and that the judgment should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  