No. 4157 | Cal. | Jul 1, 1875
Lead Opinion
The court found, as a conclusion of law, “ that before said-fire, said building had become a fallen building within the terms of the policy set forth in plaintiff’s complaint, and that the falling down was not the result of a fire.” This finding, although stated among the conclusions of law, is the finding of an ultimate fact. The plaintiff attacks this finding as contrary to the evidence; and it is stated in the bill of exceptions that the only evidence to support it is that upon which finding No. 5 was founded, and that there was no evidence in the case to support a more general finding as to the falling of the building before the fire. The question, therefore, is: Do the matters recited in finding No. 5 support the finding that the building was a fallen building, within the meaning of the policy? It is unnecessary to repeat the matters detailed in that finding, and comment on them at length. Our conclusion is, that they do not show that the building had fallen before the fire occurred. A portion of the building had fallen, but the larger portion— more than three-fourths—was standing, and it was not a fallen building within the meaning of the thirteenth condition of the policy.
The second condition, which is “that in case of any change by which the degree of risk is increased, without the written consent of the company, this policy shall be null and void,” has reference only to a change produced by the act of the insured; such a change as the company could consent to, upon the application of the insured, and not to one occasioned by accident, or a cause over which the insured had no control.
Dissenting Opinion
dissenting:
We dissent, on the ground that in our opinion the building, before and at the time of the fire, was a fallen building within the true intent of the thirteenth condition of the policy.