American Fire Ins. Co. v. Brighton Cotton Manuf'g Co.

• Decision Date: 16 June 1888
• Citation: 17 N.E. 771,125 Ill. 131
• Parties: AMERICAN FIRE INS. CO. v. BRIGHTON COTTON MANUF'G CO.
• Court: Illinois Supreme Court

125 Ill. 131

17 N.E. 771

AMERICAN FIRE INS. CO.

v.BRIGHTON COTTON MANUF'G CO.

Supreme Court of Illinois.

June 16, 1888.

Appeal from appellate court, First district.

Action by the Brighton Cotton Manufacturing Company against the American Fire Insurance Company, commenced in the superior court of Cook county, to recover on an insurance policy. On a trial to the court before R. S. WILLIAMSON, Judge, there was judgment for plaintiff, which was affirmed on appeal in the appellate court, and defendant appeals to the supreme court.

An insurance policy is to be construed by the same rules that govern all other instruments. Robertson v. French, 4 East, 135; Sawyer v. Insurance Co., 37 Wis. 518; 1 Arn. Ins. 64; Potter v. Insurance Co., 5 Hill, 147;Insurance Co. v. Padfield, 78 Ill. 167;Insurance Co. v. Martin, 8 Ins. Law J. 145; Herrman v. Insurance Co., 85 N. Y. 171;Insurance Co. v. Foster, 92 Ill. 336;Carpenter v. Insurance Co., 16 Pet. 510;Mack v. Insurance Co., 13 N. E. Rep. 343. As to the meaning in the policy of the provision for a forfeiture for a cessation of operations, see Keith v. Insurance Co., 10 Allen, 228;Insurance Co. v. Wetmore, 32 Ill. 245;Schmidt v. Insurance Co., 41 Ill. 298;Insurance Co. v. McDowell, 50 Ill. 129;Hinckley v. Insurance Co., (Mass.) 1 N. E. Rep. 737; Laselle v. Insurance Co., 43 N. J. Law, 468; Ridge v. Insurance Co., 9 Lea, 507;Worthington v. Bearse, 12 Allen, 382;Bennett v. Insurance Co., 50 Conn. 420,51 Conn. 507;Lounsbury v. Insurance Co., 8 Conn. 459; May, Ins. § 265; 2 Phil. Ins. § 975; Insurance Co. v. Meyers, 63 Ind. 238. The claim that a temporary cessation of operations will not invalidate the condition of the policy under discussion is largely based on Insurance Co. v. Leathers, (Pa.) 8 Atl. Rep. 424; Poss v. Insurance Co., 7 Lea, 704,-which are not parallel cases, and the decision in the Poss Case was very much modified, if, indeed, that portion of it now complained of was not overruled, in a later case before the same court. Ridge v. Insurance Co., 9 Lea, 507. The books abound in cases where it has been held the length of time of the condition broken is not material, even though an intention to resume the original condition of things existed. Sleeper v. Insurance Co., 56 N. H. 401, 5 Ins. Law J. 538; Ashworth v. Insurance Co., 112 Mass. 422;Cook v. Insurance Co., 70 Mo. 610;Whitney v. Insurance Co., 9 Hun, 39; 1 Wood, Ins. (2d Ed.) 211; Alston v. Insurance Co., 80 N. C. 326;Miller v. Insurance Co., 13 Phila. 551; Woodruff v. Insurance Co., 83 N. Y. 133. But it is argued that a cessation of operations for a reasonable time, for purposes incident to the business of the assured, was permissible, without notice. Such a cessation is not such as was contemplated by the contracting parties as avoiding the policy, but is to be treated the same as the condition of affairs on Sunday, or during the night-time,-supported by Whitney v. Insurance Co., 9 Hun, 39; May v. Insurance Co., 25 Wis. 291. But a careful reading of those cases will show they have no application to the case now under discussion. There is no cessation of operations, within the meaning of the policy, on Sunday. The operatives begin work on Monday, when they quit on Saturday. The suspension arises from the known and universal custom of resting from labor on Sunday. When the contract was made, it was with reference to this custom. But there is a vast difference between a suspension for such a reason and ‘other reasons occasioned by the usual and ordinary incidents to the business.’ Insurance Co. v. Foster, 92 Ill. 336;Woodruff v. Insurance Co., 83 N. Y. 183;Houghton v. Insurance Co., 8 Metc. 114; State v. Glucose Co., 5 Atl. Rep. 803. It has been contended, also, that the contract is to be affected by the usage of the assured or others engaged in a similar business to cease operations for various reasons that may have arisen. This question is, perhaps, not pertinent to the questions involved in this court, but the following cases are cited: Woolen Co. v. Insurance Co., 21 Conn. 39, and cases there cited; Insurance Co. v. O'Neile, 13 Ill. 93;Luce v. Insurance Co., 105 Mass. 302;Mason v. Insurance Co., 29 U. C. Q. B. 585; Ripley v. Insurance Co., 30 N. Y. 136;Duncan v. Green, 43 Iowa, 679;Partridge v. Insurance Co., 15 Wall. 573;Insurance Co. v. Harmer, 2 Ohio St. 452;Woolen Co. v. Proctor, 7 Cush. 417. It is claimed by appellant that the insured premises, at the time of the fire, were ‘vacant and unoccupied,’ within the meaning of the condition of the policy upon that subject. Paine v. Insurance Co., 5 Thomp. & C. 619; Keith v. Insurance Co., 10 Allen, 228;Insurance Co. v. Walsh, 54 Ill. 164;Ashworth v. Insurance Co., 112 Mass. 422;Insurance Co. v. Padfield, 78 Ill. 167;Reid v. Insurance Co., 90 N. Y. 382;Whitney v. Insurance Co., 9 Hun, 39: Insurance Co. v. Foster, 92 Ill. 334;Corrigan v. Insurance Co., 122 Mass. 298;Litch v. Insurance Co., 136 Mass. 491;Sleeper v. Insurance Co., 5 Ins. Law J. 538; Insurance Co. v. Burns, Id. 69; Dennison v. Insurance Co., 3 N. W. Rep. 500;Bennett v. Insurance Co., 51 Conn. 507, 50 Conn. 420; Alston v. Insurance Co., 80 N. C. 326;Insurance Co. v. Meyers, 63 Ind. 238;Herrman v. Insurance Co., 85 N. Y. 162;Cook v. Insurance Co., 70 Mo. 610;Poor v. Insurance Co., 125 Mass. 274;Insurance Co. v. Wells, 14 Ins. Law J. 171; Fitzgerald v. Insurance Co., 25 N. W. Rep. 785; 1 Wood, Ins. (2d Ed.) 209. A distinction is sought to be made because of the peculiar language of the policy sued on, which provides an avoidance only in case the premises become vacant and unoccupied, and a case in New York to sustain the position has been cited: Herrman v. Insurance Co., 85 N. Y. 162. It is believed, however, that the New York case is not in harmony with the current of authority. In the following cases a contrary view was adopted: Insurance Co. v. Padfield, supra; Insurance Co. v. Zaenger, 63 Ill. 464;Alston v. Insurance Co., 80 N. C. 326;Fitzgerald v. Insurance Co., supra.

As to the principles of construction governing the contract in this case, the following authorities are cited: Tierney v. Etherington, 1 Burrows, 348; Dow v. Insurance Co., 1 Hall, 174; Hoffman v. Insurance Co., 32 N. Y. 405;Westfall v. Insurance Co., 2 Duer, 490; Insurance Co. v. Cropper, 32 Pa. St. 351; Insurance Co. v. Verdier, 33 Mich. 138;Insurance Co. v. Eddy, 49 Ill. 107;Insurance Co. v. Robinson, 64 Ill. 268;Insurance Co. v. Scammon, 100 Ill. 644;Schroeder v. Insurance Co., 109 Ill. 157;Bank v. Insurance Co., 95 U. S. 673;Insurance Co. v. Hazelett, 4 N. E. Rep. 582; Griffey v. Insurance Co., (N. Y.) 3 N. E. Rep. 309; Burkhard v. Insurance Co., 102 Pa. St. 262. On the question as to whether the property was ‘vacant and unoccupied’ the following cases are referred to: Moore v. Insurance Co., (N. H.) 6 Atl. Rep. 27; Insurance Co. v. Tucker, 92 Ill. 64;Assurance Co. v. Mason, 5 Bradw. 147;Whitney v. Insurance Co., 72 N. Y. 120;Lead-Works v. Insurance Co., 2 Fed. Rep. 479;Stupetski v. Insurance Co., 43 Mich. 373, 5 N. W. Rep. 401;Dennison v. Insurance Co., 52 Iowa, 457, 3 N. W. Rep. 500;Whitehead v. Price, 2 Cromp. M. & R. 446; Shearman v. Insurance Co., 46 N. Y. 533;Herrman v. Insurance Co., 81 N. Y. 187; May, Ins. (2d Ed.) §§ 174, 175, 203, 205. It has been held from the earliest times, and when the business was confined chiefly to marine insurance, that the policy is to be construed largely for the benefit of the trade, and for the insured. Tierney v. Etherington, 1 Burrows, 348. And it is further held that in the construction of the conditions of the policy inserted, as they are, for the benefit of the insured, that they are controlled by the exigencies and necessities of the business which it was designed to protect. Townsend v. Insurance Co., 18 N. Y. 170;Insurance Co. v. Leathers, (Pa.) 8 Atl. Rep. 424; Poss v. Insurance Co., 7 Lea, 704. Defendant's agent knew, when they took the risk, that it was a cotton-mill; that various emergencies were liable to arise when the mill would have to be temporarily closed; that cotton might become scarce, or so high in price that it would be imprudent, and subject the lessees to losses in attempting to manufacture bats and warps for a short time, as in the case of Insurance Co. v. Leathers, supra; that the machinery was liable to wear out, and require repairing; that strikes might arise; that help might become scarce, or wages exorbitantly high. All this was well known, and the law says this was considered and entered into and became a part of the contract of insurance, and was therefore part of the risk assumed by the underwriter. Assurance Co. v. Mason, 5 Bradw. 141;Gamwell v. Insurance Co., 12 Cush. 167;Insurance Co. v. Foster, 90 Ill. 121;Insurance Co. v. Scammon, 100 Ill. 644;Insurance Co. v. Cornick, 24 Ill. 455; 1 Wood, Ins. (2d Ed.) 154; Grant v. Insurance Co., 5 Hill, 10;Billings v. Insurance Co., 20 Conn. 139;Insurance Co. v. Insurance Co., 1 Handy, 181;Townsend v. Insurance Co., 18 N. Y. 168. In the absence of fraud, negligence, a willful breach of the conditions of the policy, or a permanent cessation of business, the insurers should not be heard to say that the policy was avoided unless the law clearly gives them the right to do so. May v. Insurance Co., 25 Wis. 291;Lead-Works v. Insurance Co., 2 Fed. Rep. 478;Cummins v. Insurance Co., 67 N. Y. 260. At the time the policy in question was issued, express permission was granted to the plaintiffs to make all necessary repairs and requisite alterations. But whether this would extend to the plaintiff's lessee is immaterial, for the reason that this privilege is presumed to have been contemplated by the underwriter when the policy was written. Whitney v. Insurance Co., 72 N. Y. 117;Townsend v. Insurance Co., 18 N. Y. 168; May, Ins. (2d Ed.) § 224, p. 281, etc. Whether there was a temporary suspension only, based upon reasonable and justifiable grounds, was a question for the jury; in this case for the court....