89 Cal. 203 | Cal. | 1891
This is an action on a fire insurance policy to recover the sum of $548.24.
The policy contained the following clause: “Reference is hereby made to a survey and diagram on file in the office of J. C. Mitchell & Son, which is made a part of this policy, and a warranty on the part of the assured.” The application for the policy was made on November
The ruling was erroneous. The loss was not payable to the owners of the mine, but to their creditors, Rankin, Brayton & Co., and the question as to the authority of Hoyt & Son is immaterial. Plaintiffs promised to furnish the survey, and it was furnished in accordance with their agreement and became a part of the contract. The admissibility of the evidence does not depend solely upon the reference contained in the rider. The policy itself provides: “For further particulars reference is hereby
The policy as first printed and written 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.” At the request of the plaintiff this provision was changed by inserting the word “about ” in lieu of the word “upon.” The object of the change doubtless was to avoid any controversy, in case of loss, as to whether it was necessary that the watchman should be actually upon the premises on which the insured buildings stood. The change, however, did not accomplish the full purpose intended; for the watchman slept a distance of three hundred or four hundred feet from the mill; and the word “ about,” as used, is so uncertain in signification that it cannot be determined therefrom exactly what territory was intended to be covered by it. But however uncertain the promissory warranty may be as to the premises upon which the watchman was required to be, there is no ambiguity in the language with respect to the_ time he was required to watch the prem
The court instructed the jury that “if the assured employed a watchman to be in and about the premises day and night while the mill was idle, then the plaintiff is entitled to recover,” and submitted to them for determination the question whether plaintiffs had performed the conditions of the contract. Cases are cited by respondent in support of the action of the court which hold that under certain watchman clauses it is proper to receive evidence of usage and to submit to the jury the question whether the insured employed a watchman to look after the property in the manner in which men of ordinary care in similar departments of business manage their own affairs of like kind. But they all go off upon the proposition that the terms of the warranty are not explicit as to the time and manner of keeping a watch. Thus in the Massachusetts case, the language of the clause was, “a watchman kept on the premises”; and in the Illinois case, “a watchman to be on the premises constantly during the time until September 1, 1872.” In the latter case plaintiff had employed a day-watchman and a night-watchman, and the only question considered was, w'hether it was necessary for the watchman to be actually on the premises on which the insured buildings were situated.
In the case before us the terms of the warranty are explicit as to the time of keeping a watch, and on the undisputed evidence we think the court ought to have held that the plaintiffs had not complied therewith.
The mill was idle for two months prior to the destruction thereof by fire, and the evidence shows that plain
It does not appear whether the watchman was actually on duty at the time the fire occurred. If the fact be considered as material, it is sufficient to say that defendant having shown the mill was idle, the burden of proving a compliance with the warranty rested upon the plaintiffs. (Cowan v. Phoenix Ins. Co., 78 Cal. 181; Wood on Fire Insurance, 2d ed., p. 1136.)
Garoutte, J., Harrison, J., De Haven, J., and McFarland, J., concurred.
Beatty, J., concurring.—I concur in the judgment, and in the conclusion that the evidence does not show that a watchman was employed as stipulated.