39 P. 196 | Idaho | 1895
(After Stating the Facts as Above.) — There being no material conflict in the evidence, the liability of the defendant insurance company depends upon a proper construction of certain provisions of the insurance policy sued on.
It is contended that as the mill ceased to be operated for ten consecutive days, without the consent of the insurance company indorsed on said policy, the policy is void for that reason. The provision of the policy on that point is as follows: “This policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the subject of insurance be a manufacturing establishment, and cease to be operated for more than ten consecutive days.” It is also contended that said mill remained vacant and unoccupied for a period of more than ten days, without the consent of the insurance company indorsed on the policy, and was void for that reason. The provision of the policy on that point is as follows: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days.” These contentions will be considered together.
The respondents contend that as the agents of said insurance company knew that said mill was run by water power, and also knew that it could not be operated during cold weather and had not been operated during certain months in each previous year, the above condition of the policy was waived; in other words, that as the agent knew it was an impossibility tó operate said mill during cold weather, he, having insured it on the ninth day of September, 1893, for one year, and received the premium for that period, had thereby waived the provision of the policy first above quoted, and that as said policy was issued with full knowledge by the insurance company of the facts that had caused and must cause the operation of said mill to cease for certain months during each
It is contended by appellant that, to be vacant, the building would have to have the machinery and everything moved out, but that it became unoccupied whenever it ceased to be used in the manner in which it was ordinarily used. As the insurance company waived the provision of the policy which voided it on a cessation to operate the mill for ten consecutive days, it thereby waived that particular occupancy of said building which was necessary when the mill was in operation. The policy prohibited the operation of said mill after 10 o’clock at night, and did not require a watchman to be kept at or in the mill from that time until the following morning, or at all. The mill burned at about 11 o’clock at night. If it had been in operation up to 10 o’clock of that night, probably no one would have been present when it caught fire, for the reason that no one was required to remain in said building during the night. We think the occupancy above shown satisfies the condition, and preserves the obligation, of said policy. In Moody v. Insurance Co., 52 Ohio St. 12, 49 Am. St. Rep. 699, 38 N. E. 1011, the court, in discussing the meaning of the term “occupancy,” as used in the insurance policy then under consideration, says: “Strictly construed, occupancy for any lawful purpose would satisfy the condition and preserve the obligation of the policy. Nor does it follow that the dwelling-house is unoccupied merely because it has ceased to be used as a family residence, when the household goods remain ready for use, and it continues to be occupied by one or more members of the family for the purpose of caring for it, and who do care for it.” (See Whitney v. Insurance Co., 72 N. Y. 117, 28 Am. Rep. 116; Insurance Co. v. Smith, 3 Colo. 422; 17 Am. & Eng. Ency. of Law, 28-33; Williams v. Insurance Co., 24 Fed. 625; Albion Lead Works v. Williamsburg City Fire Ins. Co., 2 Fed. 479; McMurray v. Insurance Co., 87 Iowa, 453, 54 N. W. 354.)
It is-also contended that said policy became void by reason of foreclosure proceedings having been commenced by the First National Bank of Idaho to foreclose the mortgage above re
The appellant contends that the answer of the roller mill company, in the foreclosure suit, set up as an offset against the mortgage sought to be foreclosed the negligence of the First National Bank of Idaho for violating said provision of the policy, in not notifying the insurance company of the com