171 Mo. 143 | Mo. Ct. App. | 1902
This is a suit on a fire insurance machinery, etc., constituting a flouring mill.. In the written application for the policy which the insured signed was this question and answer: “Do you agree to keep a watchman on the premises at all times when the machinery is not in operation?' Yes.”
In addition to the question and answer quoted, the application contained statements as to the character and condition of the property, the title, etc., and at the conclusion was this: “And the undersigned applicant hereby warrants that the above is a just, full and true exposition of the facts and circumstances in regard to the property to be insured, and it shall be considered as the basis on which insurance is to be afpolicy. The property insured was a building with fected and continued in force, and the same is under
The answer pleads these terms of the contract and avers that at the time of the fire the machinery was not in operation and there was not a watchman on the premises.
The reply is to the effect that the insured, in compliance with the terms of the contract, did employ two men, Bell Taylor and J. N. Robinson, to stay on. the premises as watchmen when the machinery was not in operation, Taylor to be on watch from twelve o’clock midnight to six o’clock in .the morning, and Robinson from six in the morning until midnight; that they were competent and efficient men for the purpose, and agreed with the assured to faithfully perform the duty appertaining to the position, and that they did so; that when the fire occurred the machinery was not in operation, having closed down for the night; that Robinson, whose watch it was, was on the premises until fifteen minutes past ten o’clock at night, at which time he went over the mill and carefully examined everything and then went to his home, to which he was called because of the sickness of his wife; that the fire occurred shortly before midnight, just before Taylor’s watch was to begin; that Robinson left before his watch expired without the knowledge or consent of the assured, and in violation of his agreement with assured, and in contravention to his duty as watchman.
On the trial the plaintiff was permitted, over the objection of defendant, to prove the facts pleaded in the reply. The cause was tried by the court, jury waived. The instructions given and refused show that the court adopted the theory that the facts pleaded in the reply amounted to a compliance by the insured with the terms of the contract in -reference to keeping a watchman. There was a finding and judgment for the plaintiff for $7,015, and defendant appeals.
Two points were urged in the trial court and the same are urged here in defense of the action: First,
I. The defendant is in the attitude of demanding the strictest construction of its contract. It combats •the argument of the plaintiff that the agreement to keep a watchman should be given a reasonable construction and it insists on the letter. The plaintiff says when we agreed to keep a watchman it was understood to mean that we would in good faith do all that reasonable, prudent men. engaged in that kind of business would do to see that a watchman was on duty to guard the property when the machinery was not in operation and that we have done. But the defendant says there is no room for construction; the contract requires a watchman to be in the place, and you warrant that he will be there every minute while the machinery is not in operation, and the obligation on our part to insure is ended when your watchman leaves his post, for a long or a short period, with or without your knowledge or consent. Parties may contract with each other to that effect, and courts will hold them to the contract regardless of the consequences, but courts will not give to a contract such a harsh construction unless it is clear •that it was so intended. Appellant itself is.in no condition to invoke so strict a construction. If we should apply to the terms used in the application and the policy •the strict rules of construction the appellant demands, there is room to question if the language used in reference to keeping a watchman is covered by the warranty clause at all. The question in the application is: “Do you agree to keep a watchman on the premises at all times when the machinery is not in opera-, -tionf” The answér is, “Yes.” Now if that is all
The most favorable construction that can be put on the watchman clause in this contract is that the obligation on the part of the insured to keep a watchman when the machinery is not in operation, is a condition subsequent, the breach of which would release the insurance. But the obligation must not be so strictly construed as to effect a result that the parties can not be reasonably presumed under all the circumstances of the case to have intended. In construing it we must be careful on the one hand not to read into it a condition inconsistent with its natural purport, and on the other not to interpret it so as to give to the letter a force that will defeat the evident intention of the parties. The insured agreed to keep a watchman on the premises at all times when the machinery was not in operation. As in fulfillment of this agreement he employed two men for that purpose — competent, experienced and efficient men. Up to the time the fire occurred these men had been in this service for a long time and had faithfully discharged the duties for which they were employed. One of them, whose watch it was on the night in question, left his post after ten o’clock and the fire occurred before the other man, whose watch began at twelve, came on duty. The watchman who left his post says he did so because his wife was sick and needed his attention, but we are not concerned with his excuse; the result would be the same if he had no
In the able and thorough brief of appellant’s counsel we are cited to many authorities which it is claimed sustain appellant’s view of this contract. But without reviewing them all we will say that we do not understand the Missouri decisions referred to as so holding.
In Brooks v. Ins. Co., 11 Mo. App. 349, the contract was: “Warranted by the insured that there shall be a watchman kept on the premises at night and on Sundays.” The evidence showed that the assured employed no one to watch the mill at night. It was not in that case as in this, a mere temporary absence or a neglect of duty on the part of the watchman, but the insured had failed to employ a watchman for that interval as he had agreed to do.
In Loehner v. Ins. Co., 17 Mo. 247, it was decided that a representation in the application to the effect that there was no incumbrance on the property was a warranty of tbe truth of that statement and that parol evidence to the effect that the insured told the agent that there was an incumbrance was inadmissible. But there is nothing in that case on the point now under discussion. The parol evidence introduced in this case was not intended to vary the written contract, but was to show that the insured had in fact done what it agreed to do. Nor do we find anything in Mers v. Ins. Co., 68 Mo. 131, bearing on the question.- These are the Missouri eases relied on.
The precise question we now have was before the Supreme Court of Nebraska in Hanover Fire Ins. Co. v. Giustin, 40 Neb. 828. The contract required the insured to keep a watchman on the premises during the night and at all times when the works are not in opera
A suit growing out of this loss on another policy covering this property, in which a like clause as to a watchman was contained came before the Supreme Court of Michigan (McGrannon v. Fire Ins. Co., 127 Mich. 636), and that court in an able opinion by Moore, J., entered into an elaborate review of the authorities and reached the conclusion that the insured had complied with its part of the agreement when it did everything that a prudent business man under like circumstances would have done, aiming in good faith to comply with the terms of the contract. The court in that case quote from a Massachusetts case (King Brick Mfg. Co. v. Royal Ins. Co., 164 Mass. 291), in which, as to a similar clause in the policy, it was said: “The duty was thus imposed upon the insured to use all reasonable care, and to take all reasonable means to see that a constant watch was kept. This was done by making a rule to that effect, and providing a watch. No negligence or fraud is implied to the assured. The loss was caused by the negligence of a servant, and this is a risk covered by the insurance.” That is the theory on which the learned circuit judge tried this cause, and we think it is the true theory.
The contract gave the insurance company sixty days after proof of loss in which to make payment; and the petition did not state that proof of loss was furnished the company sixty days before suit was begun. It does not appear from the pleadings, either petition answer or reply, that defendant was entitled to sixty days after proof of loss in which to make payment; that is a fact which comes out only in the evidence. A motion in arrest of judgment reaches only a defect in the record proper. Such defect must appear on the face of the record; if it does not so appear, evidence of a fact dehors the record can not support the motion. For aught that appears on the face of this record, the plaintiff’s cause of action had matured when the suit was begun.
The petition avers that the plaintiff had performed all the conditions of the contract on his part and had become entitled to recover the entire loss under the policy. That was a sufficient averment under our statute, section 634, Revised Statutes 1899.
The proof of loss was in evidence and the fact appeared that it was furnished more than sixty days before the suit was begun. Appellant concedes in its-brief that the fact is that the suit was begun after the sixty days grace had expired. If there was error in
We find no error in the record and the judgment' is affirmed.