Southwest Lead & Zinc Co. v. Phœnix Insurance

Ellison, J. This action is to recover on a policy of insurance. That portion of the policy under which the insurance is claimed, reads: “Four hundred dollars on their one-story frame building to be occupied by furnaces for smelting zinc.” The building was not yet completed, but permission was given that it might be finished. The policy was admitted, and the only evi [457] lence taken was that of the president of the plaintiff company. At the conclusion of his testimony the court took the case from the jury, by instructing a verdict for defendant. The defendant’s claim here is, that there were two buildings, calling the one that was burned the gas producer, and, therefore, not covered by the policy, and the one not burned, the furnace for smelting zinc, as described in the policy. But the evidence of the president of the plaintiff company, on this point, was as follows: “About forty feet distant from the structure for the holding of the retorts, as already described, eight furnaces were built, variously called ‘gas-furnaces,’ ‘gas-ovens,’ and ‘gas-producers,’ made of fire-proof material, firebrick, common brick and iron. Into these eight furnaces the coal is charged, which is the only fuel used. Flues lead from them to two stacks; these stacks are capped or hooded with large iron boxes ; with these boxes are connected two large iron tubes; these tubes discharge into one tube, about five feet in diameter; this tube leads to, and discharges into, chambers of fire-brick checker-work, under-the structure already described, containing the retorts, from whence passages lead to, and are discharged into, the space in which the retorts are placed, by openings under the retorts, called port-holes. * * * The building enclosing the structures that I have described, that is, the structure carrying the retorts, and the eight furnaces, was in two parts, one of them being about fifty by ninety feet in dimensions, and the other about fifty by sixty feet, with separate roofs and separate foundations, but connected by the iron tubes which I have described, and by a wooden platform, which was used by the men, in passing from one part of the building to the other, and upon which, also, was a tramway for the carrying of coal. Both' these parts were built of wood, were one story high, were shingle-roofed, and had basements or cellars under them. That part of the building enclosing the eight furnaces was destroyed by [458] fire, on the twenty-eighth day of May, 1883. Its value was fully thirteen hundred dollars. The loss was total. * * *' These two parts, that is, the part in which the retorts were placed, and the part composed of these eight furnaces, are both absolutely necessary to the smelting of zinc, and each useless without the other. The purpose and office of the furnaces in the part that was destroyed, was to furnish the heat for smelting. Smelting could not be carried on without them.” In answer to a question by plaintiff ’ s attorney, the witness said: “In my opinion, these two parts or structures are necessary parts of a furnace for smelting zinc, but if I had to elect between them, and say which of them is the furnace for smelting zinc, I should say the eight furnaces are, because in them the fuel is burned, the fires are made there, the firemen work there, and none of these operations are performed anywhere else. These eight furnaces occupied the building which was burned. * * * On this plat, that part of the building occupied by the retorts is marked ‘Furnace A,’ and that part occupied by the eight gas-furnaces is marked ‘ Gas Producer B’ ; that part marked ‘Gas Producer B,’ is the part that was burned; the part marked ‘Furnace A’ was not burned ; the part marked ‘ Furnace A,’ and which was not burned, was frequently known and called by the employes of the plaintiff, the ‘furnace,’ while the part which was burned was generally called by them the ‘ gas-producer,’ ‘gas-ovens,’ or ‘producer.’ They were of about equal value. *• * * If the part marked ‘Furnace A’ had been burned, I would have considered that it was covered by the policy. In ordinary conversation, sometimes the whole works are called ‘the furnace,’ and sometimes various parts of it ‘ the furnace.’ The men generally call that part, or that side, on which they happen to work, as their ‘furnace.’ The building marked ‘Furnace A’ was used for smelting zinc, and the building marked ‘ Gas Producer B,’ was used for making heat with which to smelt zinc. If a man were to ask me to [459] show Mm the furnace, I would show Mm both parts, that part where the fires are, and that part where the retorts are. No zinc ore is charged into any part of that marked ‘Gas Producer B.’ Nothing is charged there but coal. All the zinc ore is charged into the retorts, and all the retorts are in the part marked ‘Furnace A.’ The separation of the metal from the ore takes place there, and the metal is drawn off there as spelter and ready for market. A retort is not a furnace, and is never called a furnace. The part which was burned was much the more liable to burn than any other part, because the fires are there, and the fire-places, and the grates.” We are satisfied the trial court erred in sustaining a demurrer to the testimony. The only contest between the parties was, whether the building burned was covered by the policy. The court in effect, declared that the structure burned was not only not the building mentioned in the policy, but no part of it. We do not believe such declaration is justified by the testimony. The question whether the property burned was, in whole or in part, the property described in the policy, was, under the evidence contained in the record, a question for the jury. The case of Tesson v. Ins. Co. (40 Mo. 33; s. c., 50 Mo. 112), is, in some respects, analogous to the question presented here. That portion of the case which can be fairly said to apply to this, is expressed in the syllabus as follows : “Whether the description in the policy covers, or fairly describes, the property intended to be insured, is a matter of fact for a jury to determine, and the terms of the policy are to be reasonably construed with reference to the whole subject-matter.” I am of the opinion that the jury should pass upon the facts, as developed; that .they should find whether what has been called here the furnace-building, and the retort-building, are to be considered as one structure ; whether, together they comprise the “ one-story frame [460] building to be occupied by furnac.es for smelting zinc.” If they so believe, then the plaintiff’s loss on the part burned should be apportioned, and 'his recovery be had accordingly. If the jury should believe the part burned was not the property described in the policy, then the finding would, of course, be for the defendant, and as it is conceded the loss is greater than the amount of insurance, if the jury should believe the structure burned was the one"'covered by the policy, the finding would be for plaintiff, in the full amount of its claim. The judgment is reversed and the cause remanded. All concur.