Fayle v. Camden Fire Ins. Ass'n
| Decision Date | 17 June 1929 |
| Docket Number | 6446,6447. |
| Parties | FAYLE v. CAMDEN FIRE INS. ASS'N. SAME v. NEW YORK UNDERWRITERS' INS. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.
Separate actions by B. T. Fayle against the Camden Fire Insurance Association and against the New York Underwriters' Insurance Company. Judgments for plaintiff, and defendants appeal. Affirmed.
R. F Gaines, of Butte, for appellants.
N. A Rotering, of Butte, for respondent.
These are appeals by the defendant insurance companies from judgments in favor of plaintiff. The cases were tried together in the court below and were argued here as one. This opinion will suffice for both.
Fayle, the plaintiff owned a house in Butte, which he insured against fire, one policy having been issued by the Camden Fire Insurance Association and the other by the New York Underwriters' Insurance Company. Fayle lived in the house until the middle of October, 1926, when he rented it to Shutey, his brother-in-law, who followed Fayle immediately in possession. Shutey was a miner working at the Original mine.
The house was used for residence purposes only by Fayle, and there seems to be no reasonable doubt that it was rented to Shutey for like purposes, and that Shutey was living in it with his family when the fire occurred. Having delivered possession of the house to Shutey, Fayle went to Madison county to live.
There was a cellar under the house which could be reached by a passageway commencing on the back porch. The evidence indicates that some time after Shutey went into possession he enlarged the cellar and constructed therein a 90-gallon still, by the use of which he manufactured moonshine whisky. Fayle did not know anything about the still nor the manufacture of whisky by Shutey until after January 5, 1927. On the afternoon of that day an explosion occurred in the cellar of the house, the force of which was sufficient to tip over a piano and other furniture, to bulge the floor of the living room, to partially knock down the chimney extending above the roof of the house, and to break most of the glass window panes out of the back porch. Neighbors, alarmed by the noise of the explosion, went to the house. They saw smoke and steam coming from the cellar. Entering the cellar they observed a fire in the furnace, which was identified as being a portion of the still. The cellar was full of smoke and steam. The neighbors put out the fire. Members of the police department arrived. They took the still away, and when they left there was no fire in the cellar. Such direct evidence as there is upon the point indicates that the still was heated with wood. The explosion may have been caused by an accumulation of steam in some portion of the still. There is no doubt that the still was in operation when the explosion occurred. Some 10 or 12 hours after the explosion and many hours after the police had taken away the still, the house burned completely. There is nothing in the record to indicate the source of the fire.
The policies are substantially alike. The one issued by the Camden "does insure * * * against all direct loss or damage by fire except as hereinafter provided, to an amount not exceeding One Thousand Dollars," the property
What will be said applies to both cases.
Plaintiff's complaint in effect charged that the policy was in force; that his dwelling house was destroyed by fire; that he had furnished all notices and proofs of loss required under the policy and the defendant had refused to pay.
The answer, after certain admissions and denials, set forth excerpts from the policy, including that hereinabove quoted, alleged the tenancy between plaintiff and Shutey, that the tenant placed the still in the property and the still was used and was being used by the tenant with the authority of, and with the knowledge of, plaintiff in the manufacture of distilled liquor of alcoholic content, in violation of the laws of the United States; that in connection with the use of the still gasoline or some other explosive was utilized for fuel and explosive gases were generated; and that by using the still the building ceased to be used for dwelling house purposes only, but was occupied and used in part for manufacturing purposes, by reason of which fact the fire hazard incident to the occupation of the premises was increased by means within the control and knowledge of the insured; and that the provisions of the insurance contract binding upon the plaintiff were breached by him and by and with his consent and knowledge; that about January 5, 1927, and in the afternoon of that date, and as a result of the use and operation of the still, an explosion occurred, partially wrecking and destroying the building, and thereafter on that date, or early in the morning of the day following, fire broke out in the premises causing damage thereto. Plaintiff replied to the answer. The jury found for the plaintiff in each case.
There is no evidence to sustain the defense that...
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