Brehm Lumber Co. v. Svea Ins. Co.

• Decision Date: 03 January 1905
• Citation: 36 Wash. 520,79 P. 34
• Parties: BREHM LUMBER CO. v. SVEA INS. CO.
• Court: Washington Supreme Court

79 P. 34

36 Wash. 520

BREHM LUMBER CO. v. SVEA INS. CO.

Supreme Court of Washington

January 3, 1905

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Action by the Brehm Lumber Company against the Svea Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

F. S Blattner and Harvey L. Johnson, for appellant.

Reynolds & Griggs, for respondent.

HADLEY J.

This action was brought to recover for loss by fire in appellant's shingle mill and plant. Respondent, an insurance company, had issued a policy of insurance upon said property in the sum of $1,500. There are several defenses but the chief one is that the property had been idle or shut down for a period of more than 30 days prior to the fire without permission of the respondent, and in violation of the terms of the policy. Another defense is that after the policy was issued, the hazard was increased without the consent of the respondent and in violation of the terms of the policy. The cause was tried before the court and a jury, and, when all the testimony had been introduced, the respondent moved the court to discharge the jury and direct that judgment of nonsuit on the merits should be entered in favor of respondent. The jury was discharged upon said motion, and thereafter judgment was entered dismissing the action at appellant's costs, and also adjudging that the said policy of insurance is null and void, and that appellant shall surrender the same to respondent for cancellation upon payment by the latter to the former of $111.33 on account of returned premium. This appeal is from the judgment. As has already been intimated, the chief controversy here is as to whether the policy was rendered void prior to the fire by reason of the insured property having been idle or shut down for a period of more than 30 days without respondent's consent. The policy contains the following provision: 'Warranted by the assured * * * that if such property be idle or shut down for more than thirty days at any one time, notice must be given this company and permission to so remain idle for such time must be indorsed hereon or this policy shall immediately cease and determine.' It is neither contended that any notice of a shut-down was given respondent, nor that the latter gave its consent thereto. It is admitted that the fire occurred on the 24th day of July, 1903. The evidence conclusively establishes that no shingles were cut at the mill after June 6, 1903, and the manufacturing machinery was entirely idle from that date until the time of the fire. Some fire was kept under the boilers, and steam was forced through the pipes of the dry kiln until June 20th, but from and after the latter date no steam was generated on the premises for any purpose, the dry kiln pipes not even being heated. It will be observed that more than 30 days elapsed after either date before the fire occurred, and the question to be determined is whether the property was 'idle or shut down,' within the meaning of the policy, during a full 30-day period which had elapsed preceding the fire. The evidence shows that during that time shingles were repeatedly shipped from the mill, and were taken from the dry kiln for that purpose. It is urged that the property was not idle or shut down, for the reason that appellant was engaged in getting bolts down to the mill for manufacture and was selling and shipping shingles. There is also evidence to the effect that some shingles were placed in the dry kiln, but no steam was used to dry them, they being left to 'air dry.' The above comprehends all that was done about the mill and insured property for more than 30 days before the fire. Certainly the getting of shingle bolts down to the mill ready to be manufactured was in no sense the operation of the insured property, and, if the property was not idle or shut down, it was because shingles were shipped from the premises and some were placed in the dry kiln. We think the words used in the policy must be given their ordinary meaning when considered in relation to the subject-matter covered by the policy. The insurance was upon a manufacturing plant, and the words 'shut down,' as commonly used in relation to such plants, refer to the stopping of the machinery and the mechanism in general by which the manufacture is effected. The word 'idle' is likewise used with the same significance. An occasional shipment or handling of shingles, the mere output of the plant, we think cannot be said to include the idea of activity in the movement of the manufacturing appliances which was evidently intended by the words used in this policy. In ordinary policies a similar provision is inserted in regard to notice and consent with reference to the vacation of the property pending the insurance period. But the provision is this policy refers to more than the mere lack of occupancy. The reasons for the provision are obvious. It is well known that such a risk as this one is extrahazardous, and, with that fact in view, before making this contract of insurance the respondent asked appellant certain questions in writing. These were answered in writing by appellant, along with its application for insurance. Among other things, appellant was asked as to the existence and number upon the premises of force pumps, hydrants, and other facilities for extinguishing fire--apparatus which could be operated at that place only when fires were under the boilers and when steam was in readiness to be applied to its operation. The answers disclosed the existence of such facilities upon the premises, and, under the terms of the application, these answers, with others, constituted the warranty on which the contract of insurance was based. It is manifest, therefore, that respondent expected these facilities to be available for use in the event of fire. It knew that they could not be available if the plant were shut down, and it therefore provided that a shut-down for more than 30 days, without notice to it, and without its consent, should determine its risk, and avoid the policy. The provision is a reasonable one, and, having been plainly and deliberately agreed upon by the parties, it should be enforced as any other contract provision. This portion of the policy was not included in the ordinary printed matter, but was made a special provision by way of a typewritten slip attached to the face of the policy in such a conspicuous place that appellant should not have overlooked the fact that it must have notified responden...