Clark v. Franklin Farmers' Mut. Fire Ins. Co.

• Decision Date: 20 June 1901
• Citation: 86 N.W. 549,111 Wis. 65
• Court: Wisconsin Supreme Court
• Parties: CLARK v. FRANKLIN FARMERS' MUT. FIRE INS. CO.

111 Wis. 65

86 N.W. 549

CLARK

v.FRANKLIN FARMERS' MUT. FIRE INS. CO.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Richland county; B. F. Dunwiddie, Judge.

Action by H. G. Clark against the Franklin Farmers' Mutual Fire Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action on an insurance policy to recover for loss alleged to have been caused by lightning. The property insured was a gristmill and sawmill operated by water power. The sawmill had been out of use for some years before the loss occurred. The dam extended across the river at right angles from east to west. The river turned southeasterly below the dam, and the westerly banks thereof were precipitous rocks. Above the dam on the east side of the stream was a structure called the “Old Mill,” on the south side of which and attached thereto was an addition called the “Annex” running the whole length thereof. The west end of the mill and annex was supported by posts set on mudsills imbedded in the bottom of the pond at the easterly edge thereof. Such posts were planked up from the top of the mudsills to a sufficient height to prevent water from flowing out of the pond and under the mill. In such protection planking a bulkhead was located through which water was formerly taken to run the sawmill. There were two gates at this point which were used, when necessary, as waste gates. There were 10 or 11 other waste gates located in the dam. A few feet south of the annex was the north side of the gristmill, which was built in two parts, the west part being what was called the “Old Mill,” and the east part the “New Mill.” The north side of the gristmill coincided with the north side of the dam. On the west side of such mill was the gristmill flume. The old mill was over the water and supported on posts. The new mill was attached to the old mill on the east side and was all on the bank of the stream. The wasteway for the water from the gates at the sawmill was under the old part of the gristmill and about 15 feet wide, it being planked at the bottom and on the east and west sides. At the time of and before the loss occurred, four gates in the dam were open, two near the east side and two near the west side thereof. The gates had been up a sufficient length of time to substantially empty the pond, except what was retained by the deadhead of the dam. June 11, 1899, at or before 12 o'clock at night, a severe rain storm commenced, which lasted for several hours and was accompanied by unusually powerful electrical disturbances. About 2 o'clock on such night there was a very sharp flash of lightning, followed immediately by a loud report, indicating that lightning had struck near by and in the vicinity of the mill. In a minute or so a noise was heard coming from the direction of the mill, as of the falling and crashing of a building, which noise lasted for some time. In the early morning hour the water in the river was quite high, the banks being full to overflowing, above and below the dam. Thereafter the water was much higher, The new part of the gristmill and all of the annex except a small part thereof at the end furthest from the pond, were gone, and lay in broken and disorganized heaps of material at various points from 20 to 40 rods below the dam. Timbers were broken and splintered but there were no marks of fire on any part of the wreckage or on any of the remaining portions of the building. There were some shingles and a small portion of the roof near the mill site above where the water had reached. The bulkhead at the west end of the sawmill was gone and the water had made for itself a new channel southeasterly under the sawmill and through the territory where the annex and the new part of the gristmill were formerly located, of a sufficient width and depth to draw thereto, mainly, the water of the river, there being a strong current setting into and through such new channel and out of it to the...