‘ ~5O r FEDERAL nmronrna. -
hazardous, and for which an extra premium was charged. Thecourt
·held the policy to have been avoided, apparently upon the ground that
the privilege to keep nre-crackers on sale was an exclusion of the right
to keep other hazardous articles, notwithstanding the testimony that nre-
works constituted an article in the line of business of a German importer.
In this particular the case is distinguished from the one under consid-
eration. If it were not, of course I should feel compelled to follow it,
notwithstanding its authority was repudiated by the court of appeals of
New York, (Steinbach v. Insurance Co. , -54 N. Y. 90,) and has been gravely
. doubted by other courts. See Stout v. Insurance Cb., 12 Fed. Rep. 554.
If there had been a special provision in the written portion of the policy,
permitting certain hazardous articles to be kept, we should have held, .
following this case, that there was an implied prohibition of other haz-
ardous articles, upon the familiar principle, acpresmb uwius cat amclusio al-
tcriua. But we think that the undisputed testimony that iire-works were
_kept as anordinary portion of a stock of confectionery and toys was i
clearly admissible. · ` - `
_ 3. There- was no error in the instruction that there was no testimony
connecting the plaintiff with the burning of the property. The only
evidence? upon this point was that there was a social gathering in the
store uponithe evening before the tire; that the plaintiff and her husband
‘did%not leave theplace until 3 o’clock in the morning; that the husband
closed the store for the night,;to0k the key with him, and that they went
édirectlyitmtheir house. The tire broke out a little after 6 in the morn-
ing;·in.*the¥basem~ent. The evidence was clear that some one had en-
tered thebuilding, and had set the property on {ire, and there was no ev-
idence that the building had been broken into, or that any one but the
plaintiffs husband had the ikey to the outer door. The jury were in-
structed that, although there was evidence sufficient to be submitted to
them that the husband had burned the property, it was not material in
this case, as there was noevidence to connect the plaintiff withit,——·to
show that it was done with her assent or connivance; and that plaintiff
  would not be affected bythe fraudulent burning ofthe property by her
husband. ~ Whether he set the {ire before he left the building, orre-
turned there; after havinggone to his house, was immaterial, without
some evidence connecting her with the arson. While the facts were such
as to excite a· grave suspicion ofthe wife’s connivance, theywere not such
as to legally entitle this defense to be presented to the jury. There can
I be no question of the legal proposition that the wife is not chargeable
‘ with the fraudulent conduct of her- husband, notwithstanding he may
have been her agent in the management of the property and the conduct
of her business. · . 4 .
4. Therewas no error in ruling out thequestion to the witness Plinsky,
whether he was not out upon bail charged with an assault with intent to
murder. Whether such a question should be permitted or not we think
was in the discretion of the court, and its exclusion cannot be claimed as
error. .
The motion for a new trial must be denied.