Although the erection of the gates did not supersede the necessity of complying with the requirements of the statute, nevertheless when the warning which they give is ignored, 67 it strongly tends to show gross negligence on the part of the person injured.

These views practically dispose of all the questions presented by the exceptions.

It is the judgment of this court that the judgment of the circuit court be affirmed.

Per CURIAM. After careful consideration of the petition herein, the court is satisfied that no material question of law or fact has been overlooked or disregarded.

It is therefore ordered that the petition be dismissed and the order herein granted staying the remittitur be revoked.

In the Case of Thomasson v. Southern Ry. Co., 72 S. C. 1, 51 S. E. 443, referred to in the principal case, it was decided that in an action to recover for injury sustained at a street crossing which had been blocked by a railroad train, for a time longer than that permitted by ordinance, evidence is admissible to show that the person injured and others were laborers, who at the time of the accident had only a few moments in which to return to their work, and that plaintiff's foot was crushed while he was attempting to pass between the standing cars.

The Law Requires Railroad Companies to give notice of trains approaching a crossing. What such notice shall be will to some extent depend upon the circumstances of each case, but some suitable means must be adopted and applied which will apprise travelers of the danger of the situation: See Bickel v. Pennsylvania R. R. Co., 217 Pa. 456, 118 Am. St. Rep. 926, and cases cited in the cross-reference note thereto; Queen Anne's R. R. Co. v. Reed, 5 Penne. 226, 119 Am. St. Rep. 301. Safety gates at a crossing, if standing open, are an invitation to a traveler on the highway to cross; and while this fact does not relieve him from the duty of exercising care, it is a fact for the consideration of the jury in determining whether he exercised care according to the circumstances: Messinger v. Pennsylvania R. R. Co., 215 Pa. 497, 114 Am. St. Rep. 970.

SUMTER TOBACCO

WAREHOUSE COMPANY V.

PHOENIX ASSURANCE COMPANY.

[76 S. C. 76, 56 S. E. 654.]

INSURANCE.-Temporary Increase in Risk forbidden by a policy of fire insurance does not avoid it when the increase of hazard has come to an end without loss, and the loss occurs from another (p. 943.)

cause.

CORPORATIONS-Evidence of Incorporation. The original charter for a corporation, duly certified, is the highest evidence of the incorporation. (p. 944.)

CORPORATIONS-Change in Name-Right to Attack for.An irregularity in not complying with the law in changing the name of a corporation is available only in a direct proceeding to annul its charter, instituted on behalf of the state. (p. 945.)

CORPORATIONS-Deed to Before Charter Granted-Change in Name Insurance-Estoppel.-A deed to a corporation made before its charter is granted will take effect as soon as its charter is obtained, although there is a slight change in the name of the corporation from that mentioned in the deed, and an insurance company cannot raise this objection to the validity of the deed, when it has issued its policy and received its premium from a person as owner of the property. (p. 945.)

J. T. Seibels and Haynesworth & Haynesworth, for the appellant.

Lee & Moise, for the appellee.

78 WOODS, J. This appeal is from a judgment recov ered by the plaintiff on a policy of insurance issued by the defendant insurance company covering a "two-story frame shingle roof prizery," the property having been destroyed by fire on July 11, 1903.

The defense on the merits was under the following provisions of the policy: "This entire policy, unless provided by agreement indorsed hereon or added hereto, shall be void . . . if the hazard be increased by any means within the control or knowledge of the insured." "This entire policy. unless otherwise provided by agreement indorsed hereon or added hereto . . . . shall be void if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process. or judgment or by voluntary act of the insured or otherwise." The specific violation of these conditions alleged as avoiding the policy was that the plaintiff had changed the possession and increased the hazard by renting the building to

a tenant who used it by permission of the plaintiff, and without 79 the knowledge or consent of the defendant, in making and renovating mattresses, a business more hazardous than conducting a tobacco prizery, which was the business mentioned in the policy.

We consider first the exception which charges error in the instruction: "If the jury believe that the possession of the property insured was delivered to a tenant who occupied the property with an increased hazard, and if the jury believe that the occupation was temporary and ceased before the fire, then such occupation would not prevent a recovery, if it was contemplated and agreed between the parties that there should be a temporary use of it." The same point was made in other exceptions to the charge by request to direct a verdict and by motion for a new trial.

Stating the evidence as to change of possession and increase of hazard most favorably to the defendant, it is manifest such change and increased hazard was only temporary, had ceased before the fire occurred and had no connection with it. Ryttenberg, plaintiff's agent, about a month prior to the fire. agreed to rent the property to one Potter, a maker and renovater of mattresses. Potter went into possession and placed a steam engine just outside of the building, which a witness on one occasion saw fired up ready for use in the mattress business; but on finding the building not suited to his purposes, Potter moved out after an occupancy of only two or three days. Ryttenberg seems to have supposed Potter was still in possession at the time of the fire, as he so stated in his proof of loss. In this statement of the facts, all evidence objected to by the defendant has been left out of view; and if a temporary change of possession increasing the risk while it lasts, but discontinued before the fire, does not totally avoid the policy, but merely suspends it during the prohibited use. the provisions of the policy above quoted cannot avail the defendant.

On this point the authorities are in hopeless conflict. Some courts of high authority hold the policy to be finally so avoided by such temporary increase of hazard: Mead v. Insurance Co., 7 N. Y. 530; Wheeler v. Traders' Ins. Co., 62 N. H. 326, 13 Am. St. Rep. 582; Continental Ins. Co. v. Kyle, 124 Ind. 132, 19 Am. St. Rep. 77, 24 N. E. 727, 9 L. R. A. 81; German Ins. Co. v. Russell, 65 Kan. 373, 69 Pac. 345, 58 L. R. A. 234. The precise point has not been decided by the su

preme court of the United States, but the case of Kyte v. Commercial Assur. Co., 149 Mass. 116, 21 N. E. 361, is cited with approval in Imperial etc. Ins. Co. v. Coos County, 151 U. S. 451, 14 Sup. Ct. Rep. 379, 28 L. ed. 231. The issue in the lastmentioned case, however, was not to the effect of a temporary change, but of a permanent change due to the material alterations of the building without the consent of the insurer. In Liverpool L. & G. Ins. Co. v. Gunther, 116 U. S. 113, 6 Sup. Ct. Rep. 306, 29 L. ed. 575, the prohibited hazard was in existence at the time of the fire, and the exact point here under consideration was not involved. The reasoning in Kyte v. Commercial Assur. Co., the Massachusetts case just referred to, is that unless the policy be regarded at an end the moment the hazard is increased, the insurance company would be held to furnish insurance for which it had not received the consideration it was entitled to demand and which with knowledge of the facts it would have demanded. But this reasoning seems fallacious, for the insurer is generally held to be not liable at all if the fire occurs during the continuance of the increased risk and in consequence of it.

The contract of insurance must, like other contracts, be enforced according to its terms. In construing such contracts, however, courts should endeavor to ascertain from the language used, in the light of the surrounding circumstances and the nature of the business, the safeguards which the parties intended to place around themselves. It may be reasonable to suppose an insurance company would desire to reserve the valuable right of canceling a policy even on a temporary increase of hazard if known to it at the time, because such damage might result in loss; but it is not reasonable to impute to it a purpose or desire to curtail its own revenue by canceling a policy on account of a temporary increase of hazard which has come to an end without 81 loss and from which it could not possibly suffer detriment. Hence there may be ground for holding a temporary increase of hazard forbidden by the policy to avoid the insurance without action or even knowledge on the part of the company when the loss resulted from that cause, but there is no ground for such a holding when the increase of hazard came to an end without loss. The greater weight of authority supports this conclusion: Wetmore v. Insurance Co., 32 Ill. 221; Catlin v. Insurance Co., 163 Ill. 256, 45 N. E. 255, 25 L. R. A. 595; Born v. Home Ins. Co., 110 Iowa, 379, 80 Am. St. Rep.

300, and note, 81 N. W. 676; Phoenix Ins. Co. v. Lawrence, 4 Met. 9, 81 Am. Dec. 521; United States F. & M. Ins. Co. v. Ramberly, 34 Md. 224, 6 Am. St. Rep. 325; Angier v. Western Assur. Co., 10 S. Dak. 82, 66 Am. St. Rep. 685, and note, 71 N. W. 761; Doud v. Citizens' Ins. Co., 141 Pa. 47, 23 Am. St. Rep. 263, 21 Atl. 805, 45 L. R. A. 204; Adair v. Southern M. I. Co., 107 Ga. 297, 73 Am. St. Rep. 122, 33 S. E. 78; Springfield F. & M. I. Co. v. Wade, 95 Tex. 598, 93 Am. St. Rep. 870, 68 S. W. 977, 58 L. R. A. 714; North B. M. I. Co. v. Union Stockyards Co., 27 Ky. Law Rep. 852, 87 S. W. 285; Springfield F. & M. I. Co. v. McLemans, 28 Neb. 846, 45 N. W. 171; Gates v. Madison County Ins. Co., 5 N. Y. 469, 55 Am. Dec. 360.

While in the case of Leggett v. Insurance Co., 10 Rich. 202, stress was laid on the fact that the action was for insurance on a stock of goods and not on the building in which they were contained, and that, therefore, some of the provisions of the policy similar to those here under consideration had no application, yet in that case the court of appeals approved a charge to the effect that an increase of risk permanent and continuous took away the benefit of the policy, even though it did not produce the loss, but that "an occasional temporary increase of risk took away only the right to complain of loss which it had occasioned, and did not affect the right to recover for a loss with which it was in no way concerned."

Some of the cases above cited from other states seem to go to the extent of holding that a temporary increase of hazard would not prevent a recovery on the policy even where the fire was occasioned by the increased hazard. As to that question we express no opinion as it is not involved in this case.

82 It follows from this discussion that the plaintiff was entitled to recover without respect to the question of waiver, on the facts as proved by the defendant, unless there is some material error as to another defense set up by the defendant.

In proving title to the property plaintiff offered in evidence a deed from William Moran to the Sumter Tobacco and Cotton Warehouse Company, and a charter issued by the Secretary of State to the Sumter Tobacco Warehouse Company, the charter reciting that the original declaration set forth the name of the corporation as the Sumter Tobacco and Cotton Warehouse Company, but this name had been changed to the Sumter Tobacco Warehouse Company. The objection made to the admission of this charter on the ground that section 1884 of Civil Code allows a certified copy of the charter to be received