City Planing & Shingle Mill Co. v. Merchants', Manufacturers' & Citizens' Mut. Fire Ins. Co.

• Decision Date: 28 November 1888
• Citation: 72 Mich. 654,40 N.W. 777
• Parties: CITY PLANING & SHINGLE MILL CO. v. MERCHANTS', MANUFACTURERS' & CITIZENS' MUT. FIRE INS. CO.
• Court: Michigan Supreme Court

40 N.W. 777

72 Mich. 654

CITY PLANING & SHINGLE MILL CO. v. MERCHANTS', MANUFACTURERS' & CITIZENS' MUT. FIRE INS. CO.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, Mason county; J. BYRON JUDKINS, Judge.

Action by the City Planing & Shingle Mill Company against the Merchants', Manufacturers' & Citizens' Mutual Fire Insurance Company on a policy of fire insurance. Judgment for plaintiff, and defendant brings error.

William E. Grove, (W. H. Haggerty, of counsel,) for appellant.

Wing & Samuels, for appellee.

MORSE J.

The only question of real importance in this case is whether the mill of plaintiff, at the time it burned, had "ceased to be operated" within the meaning of the policy of insurance sued upon. The shingle-mill of plaintiff was situated on the bayou of the Pere Marquette lake, at Ludington, about 125 feet east of a planing-mill owned and operated by plaintiff, from which it received its motive power, by a cable connecting both mills. The stock of logs for the use of the shingle-mill was obtained from the pineries some 50 miles from Ludington, and were run down the Pere Marquette river. These logs were delivered by the Pere Marquette Boom Company, who had charge of the running driving, sorting, booming, and delivery of logs on this river and its tributaries. The mill was insured in the defendant company, February 4, 1886, for $2,000, by an agent who was on the ground and filled out the application and made a survey of the premises. Among other things the policy contained the following clause: "If the assured shall make any false representations of the condition situation, or occupancy of the property hereby insured, or shall conceal any fact material to the risk, or in case of over-evaluation, or any misrepresentation whatever, by the insured, either in a written application or otherwise, or if the insured shall have, or shall hereafter effect, any other insurance on the property hereby insured, or on any part thereof, without the permission of this company indorsed hereon, or if the risk shall be increased either by the occupancy of the premises in such a manner as to increase the hazard, or by the erection or occupancy of adjacent buildings, or if the premises shall become vacant or unoccupied, or, if a mill or manufactory, it shall cease to be operated, (unless shut down for repairs,) without a notice to and consent of this company indorsed hereon in each and every case, this policy shall become void provided, however, that mills or manufactories capable of being operated during certain seasons only shall not be deemed vacant when shut down for the customary period." The mill was burned on the 10th day of September, 1886, and totally destroyed. At the time of the fire it was not running, and had not been running since the 29th day of July, 1886. On the last-named day the plaintiff shows (and it was not disputed in the evidence) that the stock of logs in its boom was exhausted, and the operations of the mill temporarily suspended. A new supply of logs was expected soon, and from day to day up to the time of the burning. The plaintiff had logs in the Pere Marquette river in course of transportation by the boom company, and a boom of logs for its use reached the mill on the day of the fire. The planing-mill was kept in operation all the time, and the shingle-mill crew were waiting, expecting to go to work when logs arrived. It was also shown that the summer of 1886 was a very dry one, and the water being low was the reason of the logs being delayed. The mill was not shut down for good, or for repairs, but temporarily closed waiting for logs. No notice of the stoppage was sent to the insurance company, as the plaintiff claims, because work was intended to be resumed as soon as the logs came, and they were expected daily. It was further shown, against the objection and exception of defendant, that it was a usual and...