25 P. 260 | Cal. | 1890
1. The policy of insurance upon which this action was brought was applied for November 21, 1884, and
2. The next point urged by appellant is that the court erred in refusing to give an instruction asked by appellant, and in giving the instruction which it did give, in reference to what is called the “watchman clause” of the policy. The policy, as originally written or printed, contained this clause: “It is understood and agreed that, during such time as the above mill is idle, a watchman shall be employed by the insured to be in and upon the premises day and night.” This clause was changed at the instance of the insured, by striking out the word “upon,” and inserting in lieu thereof the word “about.” The clause as thus framed and accepted was an express promissory warranty on the part of the insured, and that it was made and accepted with full notice, and. not merely an oversight on their part, is evidenced by the fact that the change was made at their instance. The question for the jury to determine was whether or not this promissory warranty was kept on the part of the insured. Exception is taken to the refusal of the court to give each of three separate instructions asked by appellant, but only one of these exceptions is urged in argument in this court—the first. We think that instruction, as written, was correctly refused, not because it did not correctly state the law as applicable to such contracts, but because it not only stated the substance of certain evidence, but undertook to state the effect of the whole evidence tending to prove whether or not the contract had been complied with in that regard. In the instruction which the court did give, it correctly declared that the clause of the policy above quoted was a warranty that the insured would employ a watchman to be in and about the premises day and night, when the mill was idle, and that if they had failed to do so they could not recover. Neither do we think the court erred in what is subsequently said on the subject of the effect of an omission of the watchman to do his duty by negligence. That portion of the instruction is in harmony with section 2629, Civil Code, and the authorities cited in Peering’s note to that section.
3. The verdict is not supported by the evidence, and is against the law as laid down by the court in its instructions,
We concur: McFarland, J.; Sharpstein, J.; Paterson, J.
I concur in the judgment: Thornton, J.