206 F. 978 | E.D. Wash. | 1913
This is an action on two contracts of insurance to recover damages for a fire loss. The policies are of standard form With riders attached, and describe the subjects of insurance, and set forth the amounts on each class of property insured as follows:
Damage to the killing building described in item No. 1.... $19,402.48
Damage to the machinery contained in the killing building and described in subdivision B. 3,893.99
Damage to stock contained, in the killing building and described in subdivision O... 9,764.10
But while the total loss was $33,060.57, the plaintiffs only claim $3,-239.75 under the first policy and $971.80 under the second policy, by-reason of other concurrent insurance covering the same loss. The sole controversy in the case arises over the following provisions contained in the policies:
•‘$20,000 [S6.000 in second policy! to apply proportionately upon each item (and its subdivisions) of the following schedule of amount and covering upon the property hereinafter described. * * *
•‘It is understood and agreed that, in event of loss, this insurance shall attach to each of the buildings and contents thereof described herein in the exact proportion that the value of each building and contents thereof shall hear io the value of all such buildings and contents thereof at the time of fire. This clause applies to items 1 and 13. * * *
“It is a part of the consideration of this policy and the basis upon which the rate of premium is fixed that the insured shall maintain upon the within' insured premises 40 combination night; watch and fire alarm boxes of the American District Telegraph Company, and the insured guarantees that, if said boxes of the American District Telegraph Company are removed at any time during the period in which this policy remains in force, they will immediately notify the representatives of the insuring company, and will pay back to said representative such proportion of the allowance now made as shall correspond to the time which this policy has then to run before terminating. * * ®
"It is hereby warranted by the assured that one or more watchmen shall constantly be on duty in the premises herein described, night, Sundays and holidays, and at all times when the said premises are not in operation or open for business; watchman service being under A. D. T. watch or clock system.”
A brief description of the insured premises and of the A. D. T. watch or clock system becomes necessary to a proper understanding and interpretation of the above provisions of the contracts of insurance. The main building of the packing plant is 201'x312', and includes all the subdivisions or departments under item No. 1.
The cold storage building consists of six stories and a basement, 114'xll7', constructed of fireproof walls, 24 inches in thickness, rising 3 feet above the roof, and connects with the vestibule through heavy, fireproof refrigerator doors. This building is bounded on the north by the lard building with a 24-inch fireproof wall between.
The lard building consists of four stories and a basement, 48'x 127'. The walls, except that adjoining the cold storage building, are fireproof, 20 inches in thickness, rising 3above the roof. This building also communicates with the vestibule through fireproof refrigerator steel doors.
The smokehouse building consists of four stories and a basement, 47'x49', constructed of 20-inch fireproof brick walls, rising above the
The killing building consists of four stories and a basement, 66'x98', constructed of fireproof brick walls, 20 inches in thickness, rising 2 feet above the roof, and communicates with the vestibule through steel fireproof doors.’
The ’ fertilizer building consists of four stories and a basement, 66'x68', with a cattle, pen on the roof. The floors are of reinforced concrete, and the walls are 20 inches in thickness, fireproof. It communicates with the killing building on the third and fourth floors only-through 2-inch wooden doors.
The engine room is 1% stories high, 50'x83'. The walls are fireproof, 16 inches in thickness, and it communicates with the vestibule through steel doors and wired glass windows."
The dressing rooms are located on the roof of the engine building, 17'x45'' in dimensions, and inclosed by 4-inch concrete walls.
The boiler building is 1% stories high, 47'x47' in dimensions, constructed of 16-inch fireproof brick walls, rising 1% feet above the roof, and communicates with the fertilizer building by one unprotected opening.
The fuel vault is one story high, 17'x45' in dimensions, and constructed of concrete walls 8 inches in thickness. It communicates with the boiler building through an opening with sliding, fireproof doors. ’
The vestibule extends to the sixth story with re-enforced concrete floors and fireproof walls. It communicates with the cold storage building, the killing building, the smokehouse building, the engine building, and the dressing rooms through steel fireproof doors and fireproof refrigerator doors.
The offices, garage, and blacksmith shop, designated as items 2, 3, and 4, are in the same building.
The icehouse, hotel,, stable, fertilizer warehouse, stable, dwelling, city plant, and stable, designated as items S, 6, 7, 8, 9, 10, 11, and 12, are all separate buildings.
The several items which go to make up item No. 13 are scattered in different places about the plant and premises.
The A. D. T. boxes, 40 in number, are placed in the different rooms or departments of the building. “Watchman service being under A. D. T. watch or clock system” means that the watchman on duty shall ring in to the main or central office in the city of Spokane each hour for the purpose of registration. This, of course, serves as a check on the watchman, and is required for the purpose of ascertaining whether he is promptly attending to his duties. In case of fire an alarm is sent in in like manner, and is then transmitted to the city fire department.
It is admitted that a watchman was in fact on duty at the time of the fire, and that the fire- alarm was sent in promptly; but it is like! wise admitted that the requirement that the watchman should ring in each hour was never complied with. •
Under the foregoing facts the plaintiffs contend that they are entitled to-recover from the several insurance companies the full amount of their loss and proportionately from this company by reason of the
'■'!“The breach of a warranty or condition in any contract or policy of insurance shall not avoid the policy nor avail the insurer' to avoid- 'liability- unless such breach shall exist at the time of the loss and contribute to the loss;*984 anything in the policy or contract of insurance to the contrary notwithstanding. In case a loss occurs while a breach of warranty exists, if it contributes to the loss, the insured shall only be entitled to recover the amount of insurance the premium paid would purchase at the rate that would be charged without the warranty. This section shall be liberally construed.”