
    James Boatwright, et al., v. The Ætna Insurance Company.
    The general principle of the law of insurance, is, “if the risk is materially increased by the act of the insured, and it causes the loss, that avoids the policy.”
    Where, in a policy of insurance, a specification of hazards is followed by a provision that any increase of risk, within the control of the insured, shall vacate the policy; this provision is not restricted by the previous specification so as to make the insurer a special contractor under the specification-
    The meaning of words is to be restricted and directed by the subject matter, of which they are used.
    Tried before Mr. Justice Butler, at Charleston, May Term, 1846.
    This was an action on a Policy of Insurance of certain buildings in Columbia, particularly described in the policy, including two kitchens of wood and shingles, one and a half stories high. Policy, dated the 12th November, 1842. Amount insured, $5,000. Renewed for one year, 11th November, 1843. On the 29tb September, 1844, the buildings were destroyed by fire. The defendants resist payment for the loss, on the ground that the plaintiffs had committed a breach of the terms of insurance. The premises were in possession of David Ewart, and he had about two weeks before the fire, built an oven in one of the kitchens, and put up a frame, and hung up a quantity of meat upon that frame, and made a fire in the 0ATen, and kept it up to supply smoke for the purpose of curing the meat. The fire which destroyed the premises commenced in this kitchen.
    A model of the building was produced, and witnesses examined as to the circumstances of the fire, the changes which Mr. Ewart made in the premises, and the increase of the risk.
    The material parts of the policy are as follows:
    
      “And it is agreed and declared to be the true intent and meaning of the parties hereto, that in case the above mentioned premises shall at any time after the making and during the continuance of this Insurance, be appropriated, applied or used to, or, for the purpose of carrying on or exercising therein any trade, business, or vocation denominated hazardous, extra hazardous, or included in the memorandum of special rates in the conditions annexed to this policy, or for the purpose of storing or vending therein any of the articles, goods or merchandize, in conditions aforesaid, denominated hazardous, extra hazardous, or included in the memorandum of special rates, unless herein otherwise specially provided for, or hereafter agreed by this Company in writing, and added to, or endorsed on this policy, then and from thenceforth, so long as the same shall be so appropriated, applied, or used, these presents shall cease, and be of no force or effect.
    
      “And it is moreover declared, That this policy is made and accepted in reference to the conditions hereto annexed, which are to be used and resorted to, in order to explain the rights and obligations of' the parties hereto in all cases not herein otherwise specially provided for.”
    In the conditions is a classification of hazards, with a long enumeration of goods not hazardous, extra hazardous, and goods insured at special rates—but nothing of bacon and smoke-house. Then follow conditions of insurance, and the following clause on which the defendants rely:
    “If after insurance is effected either by the original policy or the renewal thereof, the risk be increased by any means within the control of the assured, or if such buildings and premises shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous, than at the time of insuring, such assurance shall be void and of no effect.”
    The plaintiff contended that this clause should be considered in connexion wfith the foregoing enumeration of goods and trades deemed hazardous, extra hazardous, and the subject of insurance at special rates. But his Honor instructed the jury, that any change by which the risk might be materially increased, was sufficient to avoid the policy.
    The jury found for the defendant, and the plaintiff appealed for a new trial, on the following grounds:
    1st. That his Honor instructed the jury, that the general words respecting the increase of risk, were not to be construed or controlled by the preceding specifications of employments and matters deemed hazardous.
    
      2d. That the verdict is not supported by the evidence in the case.
    Pettgru, for the motion.
    Risks increase and decrease involuntarily, by every change of habit or weather; shall one be bound down to the temperature of the time of insurance? The prohibited articles and trades are enumerated, and that, by which the loss accrued, is not among them. General words must be qualified, or the previous special words are vain and of none effect; 8 Coke. 155. Specifications must control the general words; 1 Mod., 69; 4 Maulé & Sel., 427; 4 Crews on Construction of Deeds, 434; Cook v. Oakley, 1 Pier. Wms., 302; Stewart a. Dukes, Dow’s Cases, 73. The general word, thing, following the specific articles mentioned, shall be considered as confined to articles ejusclem, of the same kind.
    Memmijíger, contra.
    
    There is a difference, in the law of insurance, between warranty and representation. A warranty is a written stipulation, required to be strictly complied with— a representation, to be substantially complied with; Dehun v. Hurlby, 1 T. R., 343; Person v. Watson, Cowper, 787; Black-hurst v. Cochran, 3 T. R., 361. The object of policies is to bring the specifications under the warranty. A policy may be vacated by a change from the more dangerous to the less dangerous trade; it changes the contract. Representations are to be proved by the insurer—specifications show for themselves. Whatever increases materially the risk, vacates the policy, and discharges the underwriters; 1 Phil, on Ins., 347; do., 410. There is no difference in the construction of marine and fire insurances. In this case there was a breach of warranty. Any writing on the paper, or attached to it, or in the margin, is a warranty; 1 Phil, on Ins., 347; Rutledge v. Burrell, 1 Hen. BL, 254; Worsly v. Wood, 6 T. R., 710. None of the special rates trades are endorsed on the policy, and this itself discharges the policy. When provision is made against the operation of the specific words, they are not to control. The general words, in this case, are intended to cover all articles or trades not specified, and are not inconsistent with the specifications, nor intended to exclude them. Fire heat is necessary in a smoke-house, and it should have been endorsed on the policy. What is not included in the warranty, is left to be controlled by the general law of insurance, and it was so expressed in the policy. Change or enhancement of risk discharges the insurers from any subsequent loss; 1 Phil, on Ins., 573. The specified risks were to be considered as vacating the policy, if incurred; those not specified, are the subjects of proof and discussion.
    Peticeu, in reply.
    This is not a case of warranty, but a. case of conditions. The house was still a kitchen, though used to smoke meat. There is no greater risk in smoking meat than in cooking it. Ovens are necessary for culinary purposes, and this smoke was in an oven. According to the argument in this case, putting out the fire destroys the kitchen. Expres-sio unius, exelusio alteráis. It is agreed, what shall avoid the policy, let them abide by the agreement; Martineau v. Shu-man, 2 T. TL, 100. A man must sue according to the contract, and abide by it. Is the specification to inure to the benefit of the insurer, and not equally to the insured? Rutledge v. Burrell, I Hen. Bl., 254. In this case, even after the meat had been smoked and put away, if the kitchen had been burnt, it could be dated back to the time of smoking, which would be absurd. The jury were afraid to appear too much prejudiced against the corporation, and sued the other way.
   Richardson J.

delivered the opinion of the Court.

If the Judge was correct in his instructions to the jury, then, after the finding for the insurers, under the evidence of the facts and the actual occurrence of the fire, it is not to be questioned, that building the smoke-house within the kitchen, and tlie use made of it, so increased the risk, as to avoid the policy by the general principle of “the law of insurance.”

The established principle is this, “if the risk is materially increased by the act of the insured, and it causes the loss, that avoids the policy.” See Phil. on Ins. 573. “No underwriter has ever been held,” &c., “to be answerable for losses, directly and evidently occasioned by the fault of the assured himself;” do. P., 224.

This rule is familiar in marine insurances, in cases of wilful deviation from the voyage insured; Park. 17, 294; and in insurance against fire, in cases of mismanagement causing the loss; 6 T. R., 710; 6 Taunt. 436. This is the law in such cases of loss. The question is upon its application. (I have not meant to say that the mere erection of the smoke-house, or even the use of it, would avoid the policy, whether it caused the loss or not,) as would seem to be the letter of the condition. That question need not be decided in this case.

But having laid down the rule of law, when the risk has been materially increased by the insured, I proceed to the proper question of the case, to wit: whether this general principle of insurance law can be applied to the particular policy before the Court. The distinction which is urged to take this case out of the general rule, arises out of what is called in the policy, “the classification of hazards,” and the “conditions” of insurance, both of which are appended under their respective titles or heads. The classification enumerates specifically and carefully; 1st. goods “not hazardous.” 2d. goods, trades, &c., deemed “hazardous.” 3d. those considered “extra hazardous;” and 4th. those “to bo insured at special rates of premiums.” After such classifies lions, come, what are called “conditions of insurance.” These conditions first specify several prerequisites before the policy will be given; and secondly, after the policy is executed, certain conditions arc set forth, which may render the policy void.

The particular condition now to be considered, is as follows: “if after the insurance is effected,” &c., “the risk be increased by any means within the control of the assured, or, if such buildings,” &c., “shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect.”

The case turns upon the construction and effect of this condition. The argument for a new trial is, that the terms, “if,” &c., “the risk be increased by any means within the control of the assured,” can mean no other than the hazards specified so carefully in the express classification of hazards, “ezpressio unius, esl exclusio alterius.” And, inasmuch as a smoke-house cannot be included under any of the many specifications of hazards, the structure and use of it, and consequent loss by fire, do not avoid the policy, even though the risk was increased, i. e., this risk is not to fall under the general rule of law first laid down, but is to be construed by the terms of the policy, considered as a special contract, which the insurers might make, and thereby renounce the general rule of law in their favour.

This argument couples the specifications with the sweeping condition just quoted; and it is very clear, that a general proposition, with an enumeration of particulars, will limit its generality, and confirm its meaning to the particular enumeration. For instance, if A. sell to B. all his “cattle,” bulls, cows, oxen, steers and calves, the term “cattle,” although generally including all the domesticated beasts of pasture, will be confined to the particular enumeration made of A.’s bovine stock, and B. could not claim his sheep, goats, &c., although they too be “cattle.” But I do not conceive that the construction would have been obviously the same, if the sale had been of “all A.’s bulls, cows, oxen, steers and calves, and cattle,” which would be nearer a parallel to the present case.

But to return; this is equally a rule of sound logic as of law. The law maxim is, that the meaning of words is to be restricted and directed by the subject matter of which they are used. This maxim is in daily use among men. But the whole object is, to expound the just and true meaning of parties to contracts. In the policy before us, after the enumeration of many hazards, which, if practised within the houses insured, ipso facto, avoid the policy, “so long as the premises shall be so appropriated, applied, or used.” Then there follows, but under a distinct, substantive head, entitled, “conditions of insurance,” the important condition, “after the insurance is effected,” if the risk be increased, &c., by the assured, the policy to be void. This condition provides literally for avoiding the policy, in the event of any increased hazard whatsoever, if introduced by the insured, and would seem to be intended to preserve for the insured, the rule of law first noticed, and in order to prevent the very construction of the policy that has been made against them, by reason of their astute care, so to put the insured upon his guard. But the condition, I would say, is equally for themselves to avoid cavil, upon their reserved legal rights, under established insurance law, and lest these rights should be implied away and excluded by the minute specifications. What reason can be found for swerving from the literal and plain import of the cond'tion, which at the same time preserves a fundamental, if not indispensable law of insurance, that protects the insurer against the conduct of the insured in increasing the risk. Insurance against the misconduct of agents is frequent, but the possible misconduct of the insured himself is at the foundation of the general law applied to this case; for if you make the insured liable in this case, their insurance becomes, in effect, an assurance against the errors or the misconduct of the insured himself, which would be inconsistent and absurd.

For these reasons, this Court concurs in the opinion of the presiding Judge, and the motion is refused.  