Spies v. Greenwich Insurance

Long, J. November 26, 1890, the defendant issued its policy to James A. Stephenson, receiver of the Peters & Morrison estate, covering $200 upon steam saw and shingle mill, etc., $600 on engines, boilers, etc., and $200 on fixed and movable machinery, etc. Permission was given for necessary alterations and repairs, to run nights, and to light with kerosene, gas, or electric light, and for $40,000 [311] total concurrent insurance on the property., At the time the insurance was effected, the property was occupied and in operation. Subsequently the property ceased to be operated, and became idle, vacant, and unoccupied. Under the terms of the policy these facts rendered the contract of insurance void, unless the company should indorse in writing upon the policy its consent thereto. Mr. Stephenson, then the receiver of the Peters' & Morrison property and the local agent of the company, procured the consent of the defendant company to allow its policy to remain in force by the following writing indorsed upon the policy: “ Permission is hereby granted for the property insured under this policy to remain idle and inoperative for .a period of three months from this date. “Warranted by the assured that a watchman shall be employed night and day during the. period of this permit. “To attach to and form a part of policy.No. 2,807 of the Greenwich Insurance Go. of New York. “ Dated May 1, 1891." The property was sold and conveyed by Mr. Stephenson, July 31, 1891, to the plaintiff. Upon the next day the policy was assigned to the plaintiff, and the same form of permission to continue the policy in force for 30 days from September 1, 1891, was indorsed upon the policy, together with a warranty “that a watchman shall be employed about the premises night and day during the continuation of this permit." September 16, 1891, the premises were destroyed by fire. The defendant company refused to pay the loss, basing its refusal on the ground that the assured did not keep and perform the warranty “ that a watchman shall be employed about the premises night and day” from September 1, 1891, up to and at the time of the fire, and plaintiff brought suit. On the trial the court left the question to the jury to determine whether the assured had complied with the terms of the warranty in the policy by keeping312 a watchman as therein required, and directing them that the contract required a watchman to be kept there every hour of the day and night, and that, if they found the assured did not do this, he could not recover. The jury returned a verdict in favor of the plaintiff for the amount •of the policy. The only question for consideration hero is whether there was any evidence which warranted the court in submitting this question to the jury. The property consisted in part of a saw-mill property on the shore of Green Bay, within the city of Menominee. At the time the plaintiff purchased this property he owned a saw-mill property near by, which he was operating, and continued to operate down to the time of the fire. It was 300 feet from the line between these properties to the mill of plaintiff on the south, the space being used for piling lumber. It was from 125 to 150 feet from such boundary line to the mill described in the policy, this space remaining vacant and unoccupied. The plaintiff, after making this purchase, claims to have placed the insured mill during the day-time in charge of Mr. Frederickson, his yard foreman, instructing him to watch it, and claims that Frederickson did watch it during each day down to the time of the fire. Plaintiff also claims that he employed a competent watchman, who was in charge of the property during every night, until the time of the fire, looking after the mill and lumber yard. 'There is some evidence tending to show this. Mr. Frederickson testified that he was foreman for the plaintiff in ¿his yard connected with the south mill, which was running. This yard was between the two mills. He gave his attention to the piling of lumber in the yard, to see that it 'jyas properly piled. He was also directed by the plaintiff io watch the north mill, the one in controversy here. He .claims that he did keep watch there every day down to the time of the fire, and that the men in the yard under [313] him were also instructed to watch it, and did watch it. The jury found that he was on watch there every hour in the day. We cannot say from the testimony of this watchman that the warranty to watch the mill was not complied with. It was warranted that a watchman should be employed about the premises night and day. If it had been the intention of the parties to employ a watchman on the premises, or to keep him constantly in the mill, night and day, they would undoubtedly so have written the contract; but this is not the contract. Au Sable Lumber Co. v. Insurance Co., 89 Mich. 407. As was said in Power v. Insurance Co., 8 Phila. 568: “The word [ watchman J is in its very nature loose and indefinite in its meaning, and the law cannot supply this defect by giving a definition, because it is not a technical term of the law, and because the nature of a watchman’s functions varies in different places and according to the dangers to which the property is exposed, and even according to the nature and value of the property.” Here the property was adjacent to the other property of the plaintiff; the mill yard was between; a watchman was to be employed about the premises at all times. It is apparent that the jury believed that Mr. Frederickson was about the property at all times during the day, within the meaning of the agreement. There can be no question but the night watchman was there during the night at all hours, under the testimony he gives. There was evidence to go to the jury on the question, and it was fully and fairly submitted. Judgment affirmed. McGrath and Montgomery, JJ., concurred with Long, J.