24 Ill. App. 149 | Ill. App. Ct. | 1887
The leasing of the premises in question hy the plaintiff below, to Baker & Kelly, after the policy in suit was issued, was expressly assented to by the defendant. Ko question, therefore, arises from that circumstance affecting the validity of the policy.
But counsel for the defendant contend as the sole ground of error that the stopping by Baker & Kelly of the operation of the factory from the 8th to the 16th day of July, 1885, although done for the purpose and in the manner as shown by the evidence, constituted a breach of each and all of three special conditions of the policy, and that by its express terms such breach rendered the policy void. So that the judgment below was against the law and the evidence, and should for that reason be reversed.
The first of those conditions is to the effect that if the risk should be increased by any means whatever with the knowledge of the assured, and the latter should neglect to notify the company thereof and have the same indorsed upon the policy, paying therefor such additional premium as should be demanded, the policy should be void.
That condition and the other two are to be taken and construed in connection with the following provision of the policy: “Other insurance permitted without notice, and permission granted to set up and operate machinery and to make such repairs and alterations as may be necessary to keep the premises in good order during the term of this policy without prejudice thereto.”
The exercise of the privilege thus given involved the necessity, in a greater or less degree, depending upon circumstances, of a temporary stoppage of the operation of the factory. Such stoppage was therefore authorized by the policy, which, it in,terms provided, should be without prejudice thereto. ETow the evidence tended to show that the stopping the operation of the factory was for the purpose of making needed repairs and alterations, which made such stoppage necessary. The evidence upon the question, whether what was done in that behalf did in fact increase the risk, was conflicting, but the evidence tending to show the purpose of the suspension to have been within the intention of the clause last above quoted, was without any substantial conflict. Hence the finding of the trial Judge, sitting in the place of a jury, must be taken by this court to be conclusive upon those questions of fact. That is a complete answer to the position of counsel as to the alleged forfeiture o'f the policy, under the first special condition.
The second is, that if the assured should allow the building covered by the insurance to become vacant and unoccupied, the policy should thereupon become void.
The short answer to the contention of counsel for defendant, under that head, is, that their position is taken against the very truth of the uncontroverted testimony. The building was not at any time during the period in question vacant or unoccupied. This matter is so plain and clear upon the evidence as not to justify discussion, when we have so much in other cases that demands discussion and exhaustion of time and strength.
The third condition is in effect that if the property insured be a manufacturing establishment and it shall cease to be operated without special agreement indorsed on the policy, all insurance by this policy shall therefore cease.
The answer to the position of defendant’s counsel that the stoppage of the operation of the factory, as shown by the evidence, constituted a breach of that condition and worked a forfeiture of the policy, seems to us to be readily at hand without going into any analysis of the numerous cases cited by them. The facts of the case must govern its decision, when they distinguish it from the cases decided by other courts. The law arises upon the facts.
It is indisputable that the evidence tends to show that the suspension of the operation of the machinery of the factory was designed to be only temporary; that one, if not the principal purpose of it, was to repair machinery and make alterations. The trial judge having found for the plaintiff on all the issues, we must, therefore, presume that he found those facts in accordance with the tendency of the evidence to prove them. So that here we must take them as the facts. That being so, what is there left of counsel’s position that such stoppage or suspension constituted a breach of the condition of the policy under consideration? The policy gave express permission to make such repairs and alterations without ¡prejudice to any rights under such policy. A temporary stoppage or suspension of the operation of the machinery, and while making such repairs and alterations, was such a natural and necessary incident of the exercise of the privilege granted, that it must have been within the contemplation of the parties at the time of entering into the contract. Such stoppage or suspension was therefore authorized by the policy to be effected without prejudice to any rights of the assured thereunder.
We think the judgment in this case was supported by the evidence that there was no prejudicial error of law. So that an affirmance is the proper result.
Judgment affirmed.
