Anderson & Middleton Lumber Co. v. Lumbermen's Mut. Cas. Co., 34606

• Decision Date: 09 January 1959
• Docket Number: No. 34606,34606
• Citation: 333 P.2d 938,53 Wn.2d 404
• Court: Washington Supreme Court
• Parties: ANDERSON & MIDDLETON LUMBER COMPANY, a corporation, Respondent, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, a corporation, Appellant.

Page 404

53 Wn.2d 404

333 P.2d 938

ANDERSON & MIDDLETON LUMBER COMPANY, a corporation, Respondent, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, a corporation, Appellant.

No. 34606.

Supreme Court of Washington, Department 2.

Jan. 9, 1959.

Kahin, Carmody & Horswill, Seattle, for appellant.

Clark W. Adams, Aberdeen, Clarke, Clarke, Albertson & Bovingdon, Seattle, for respondent.

ROSELLINI, Justice.

This appeal involves the interpretation of a boiler and machinery insurance policy, and a review of the evidence concerning a loss sustained by the plaintiff in its lumber mill when a spoke of a bandsaw wheel was broken. The trial court found that the breaking of the spoke was within the coverage of the policy, and that as a result of the accident, a time loss of thirteen days was sustained. The trial court having found for the plaintiff, the evidence must be construed in its favor.

Under the terms of the policy, in so far as the claim involved in this case is concerned, the insurer was bound to pay $2,000 daily loss of use and occupancy plus material damage if a loss should be occasioned by an accident, defined as the sudden and accidental breaking of the bandsaw wheel, or any part thereof, into two or more separate parts while it was in use or connected for use. It was also provided that the plaintiff should use diligence, dispatch, and all reasonable means to resume business and that the defendant would pay for expenses incurred by the plaintiff in expediting its return to business.

In its mill, the plaintiff had a bandsaw driven by an upper and a lower bandsaw wheel, both 11 feet in diameter. The lower bandsaw wheel was cast in one piece, with no detachable part. On Wednesday, October 26, 1955, the saw began to oscillate more than was normal, and on Friday, it began to vibrate. On the following Monday morning, soon after the saw was started, the vibrations became so severe that the saw was shut down. Inspection revealed that the band wheel was loose on one end of the shaft. The hub bolts were tightened but this did not remedy the situation.

The defendant's inspector was notified and he arrived the next day. On his arrival, he inspected the wheel and hammertested the spokes to see if they were cracked. This test was negative for fractures. Then he and the superintendent checked the wheel on the shaft and found that the wheel was loose on one end of the shaft although it was tight on the other. Both came to the conclusion that the basic difficulty was the looseness of the wheel on the shaft, and that the shaft should be removed from the wheel and machined. On the following Monday in the presence of the inspector, the removal was accomplished with the use of a battering ram. After the wheel was taken out of the building, it was discovered that one of the spokes was cracked all the way through and another was cracked part-way through.

It was found that the wheel could not be repaired. A suitable replacement was found in Portland and was shipped on Tuesday, November 15th, to Lamb-Grays Harbor Co., Inc., for necessary machining. The wheel was delivered to the plaintiff on November 22nd. It was restored to position and ready to operate on Monday, November 28th.

In the meantime, when the wheel was removed, the plant was shut down and the installation of a new log deck was undertaken and completed sometime in December, when operations were resumed.

Experts who testified for the plaintiff described the fracture as a fatigue-type break, and attributed it to a flaw in the original casting. From their inspection of the wheel they formed the opinion that the breaking and cracking had occurred while in operation. One of them stated that, in his opinion, there was a gradual cracking, extending through three quarters of the broken spoke, which must have occurred over a period of from one day to three weeks, but that the breaking of the last quarter was instantaneous. It was the opinion of the other that the break occurred when the vibration of the wheel, as distinguished from its oscillation, began. Experts who testified for the defendant were of the opinion that the break occurred when the wheel was removed from the shaft with the use of a battering ram. The trial court accepted the testimony of the plaintiff's witnesses on this matter, and its finding in this regard is not challenged.

It is, however, the contention of the appellant that, accepting the testimony of the plaintiff's experts as true, the break was not one which was covered by the policy. First, it is claimed that the breaking was not sudden. It is undisputed, the defendant says, that the breaking or cracking was a gradual process which went on over a period of from one day to three weeks. The exact time when the break began was never determined.

The plaintiff answers this argument with the theory that the language of the contract pertains to the result, and not to the cause, of the accident, and that the result in this case, the final breaking, was more or less instantaneous. We agree with the position of the defendant, however, that the evidence of the plaintiff showed that the entire breaking process was not instantaneous, even though the last stage occurred in an instant.

Authorities are cited by both parties which they claim support their respective viewpoints. In none of them was the language of the insurance contract or the facts involved the same as in this case. All of the cases, however, acknowledge the general rules of construction which are applicable. The language of an insurance contract must be given its ordinary meaning unless a special or technical meaning is clearly indicated by the contract itself or by the surrounding circumstances; and where an ambiguity exists, the contract should be construed in favor of the insured. These principles are well established in this jurisdiction. Lesamiz...