36 Wash. 520 | Wash. | 1905
This action was brought to recover for loss by fire in appellant’s shingle mill and plant. Respondent, an insurance company, had issued a policy of insurance upon said property in the sum of $1,500. There are several defenses, but the chief one is that the property had been idle or shut down for a period of more than thirty days prior to the fire, without permission of the respondent, and in violation of the terms of the policy. Another defense is that, after the policy was issued, the hazard was increased without the consent of the respondent, and in violation of the terms of the policy. The cause was tried before the court and a jury, and, when all the testimony had been introduced, the respondent moved the court to discharge the jury and direct that judgment of nonsuit on the merits should be entered in favor of respondent. The jury was discharged upon said motion, and thereafter judgment was entered, dismissing the action at appellant’s costs and also, adjudging that the said policy of insurance is null and void, and that appellant shall surrender the same to respondent for cancellation, upon payment by the latter to the former of $111.33, on account of returned premium. This appeal is from the judgment.
As has already been intimated, the chief controversy here is as to whether the policy was rendered void prior to the fire by reason of the insured property having been
“Warranted by the assured . . . that if such property be idle or shut down for more than thirty days at any one time, notice must be given thie> company and permission to so remain idle for such time must be indorsed hereon or this policy shall immediately cease and determine.”
It is neither contended. that any notice of a shut down was given respondent, nor that the latter gave its consent thereto. It is admitted that the fire occurred on the 24th day of July, 1903. The evidence conclusively establishes that no shingles were cut at the mill after June 6, 1903, and the manufacturing machinery was entirely idle from that date until the time of the fire. Some fire was kept under the boilers, and steam was forced through the pipes of the dry kiln until June 20, but, from and after the latter date, no steam was generated on the premises for any purpose, the dry kiln pipes not even being heated. It will be observed that more than thirty days elapsed after either date, before the fire occurred, and the question to be determined is whether the property was “idle or shut down,” within the meaning of the policy, during a full thirty-day period which had elapsed preceding the fire.
The evidence shows that, during that time, shingles were repeatedly shipped from the mill, and were taken from the dry kiln for that purpose. It is urged that the property was not idle of shut down, for the reason that appellant was engaged in getting bolts down to the mill for manufacture, and was selling and shipping shingles. There is, also, evidence to the effect that some shingles were placed in the dry kiln, but no steam was used to dry
In ordinary policies, a similar provision is inserted in regard to notice and consent with reference to the vacation of the property pending the insurance period. But the provision in this policy refers to more than the mere lack of occupancy. The reasons for the provisions are obvious. It is well known that" such a risk as this one is extra hazardous, and, with that fact in view, before making this contract of insurance, the respondent asked appellant certain questions in writing. These were answered in writing by appellant, along with its application for insurance. Among other things, appellant was asked as to the existence and number, upon the premises, of
Appellant first assigns that the court erred in denying its motion to strike certain portions of the second affirmative defense, for the alleged reason that respondent offered no evidence in support thereof. That defense is one to which we have already alluded, and is to the effect
The principal error assigned is that the court discharged the jury, and rendered judgment as hereinbefore stated. Appellant contends that the contract Was an entire one, covering the entire property, and that, to defeat recovery, it must be shown that the entire property was idle or shut down. The policy specifies the mill building, the engines and boilers, fixed and movable machinery, the dry kiln, including piping, fixtures and connections, and also stock of logs, shingles and shingle bolts in process of manufacture, and upon the premises. Pive separate amounts are named in the policy for as many separate items, aggregating $1,500. We do not understand appellant to claim that the policy may be divisible or enforcible as to part, and void as to part, but rather that unless the entire property insured was shut down, the entire policy is enforcible. As to whether the property was shut down, the evidence shows that the only claim of continued operation that is seriously asserted is as to the dry kiln. That item is, however, described in the policy as including piping, fixtures and connections. The pipes were connected with the boilers, and could not be operated for the purposes intended without steam in them, and without fire under -the boilers to effect its creation. The dry kiln, as a dry kiln, was, therefore, as completely shut down as was the remainder of the plant. Hothing was done about it but to move shingles into and out of it, chiefly the latter. In McKenzie v. Scottish U. & N. Ins. Co., 112 Cal. 548, 44 Pac. 922, the same question was involved as here. It was claimed that the mill
“Therefore, although a policy of insurance so written as to place separate valuations upon separate subjects of insurance will ordinarily be severable, it will not be so unless it can be said that the risk intended to be excluded by a violated condition of the policy did not affect the item of property for the destruction of which a recovery is sought. Although courts are diligent to prevent forfeitures, they may not entirely subvert the contracts of parties deliberately made in an effort to do so.”
Certain cases are cited in support of appellant’s contention that the question of shut down or idleness should have been submitted to the jury. The first is that of Rockford Ins. Co. v. Storig (Ill.) 24 N. E. 674. The question in that case was whether the building was var eant or occupied. The statement of the case shows that it had been frequently used, and that, between the fifth and twelfth of January, the day the building was burned, two washings and ironings were done therein. Certainly there was evidence there for the jury.
In Home Ins. Co. v. Wood, 47 Kan. 521, 28 Pac. 167, it was also claimed that the dwelling house was vacant, but the opinion shows that “the furniture and household goods were still in the building when the fire occurred, though they were being packed in some of the rooms of the house so as to make vacant other rooms therein; that Wood had slept in the house until within a week or five days of the fire, and then went to Ford’s to sleep because he was not well; that he was at the house each day while he slept away, and was there until evening the night of the fire.” Such evidence as to occupancy was properly submitted to the jury. The matter of occupancy does not necessarily involve a continuous bodily presence upon premises, and is largely coupled with intent. Under the circumstances detailed in the above case the question was peculiarly for the jury.
In Des Moines Ice Co. v. Niagara Fire Ins. Co., 99 Iowa 193, 68 N. W. 600, the question of vacancy arose. The building was ■ an ice house. At the time of the fire, there was yet a small quantity of ice in the building, but it was not merchantable. All the tools used in putting
We are not aware of any statute in this state which prevents stipulations in; an insurance contract as to vacancies and shut downs from .being enforced as strictly as any other ordinary contract provision.
It will thus be seen .that the cases cited by appellant to the point that the question of shut down or idleness, in the case at bar, was for the jury, are all cases involving the matter of vacancy; and it must be conceded that circumstances which may establish the fact of occupancy may be wholly insufficient to establish that a manufacturing plant has been in operation, and has not been shut down. Occasional absence from premises does not necessarily terminate occupancy, but absolute silence of the mechanism • and appliances of a manufacturing plant,’
The court, therefore, did not err in withdrawing this case from the jury, and the judgment is affirmed.
Fullerton, C. J., and Dunbar, Anders, and Mount, JJ., concur.