Ferguson v. Lumbermen's Ins. Co.

• Citation: 88 P. 128,45 Wash. 209
• Court: United States State Supreme Court of Washington
• Decision Date: 02 January 1907
• Parties: FERGUSON v. LUMBERMEN'S INS. CO.

88 P. 128

45 Wash. 209

FERGUSON v. LUMBERMEN'S INS. CO.

Supreme Court of Washington

January 2, 1907

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Action by D. Ferguson against the Lumbermen's Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Dorr &amp Hadley and John B. Van Dyke, for appellants.

Rose &amp Craven, for respondent.

MOUNT C.J.

This action was brought by the plaintiff to recover upon a policy of insurance issued by the defendant to the plaintiff. Plaintiff recovered a judgment for $762.90. Defendant appeals.

After the issues of fact were made up by the complaint, answer, and reply, the case was tried to a jury. At the trial it was agreed that the policy was issued as alleged, and that a fire occurred while the policy was in force, and destroyed certain items of lumber, but it was claimed by the appellant that the policy of insurance covered only lumber which was damaged or destroyed within the yards, and did not cover lumber destroyed within the sawmill buildings or buildings adjoining thereto. Respondent, on the other hand, maintained that the policy covered lumber both within and without the sawmill buildings, and particularly within the planing mill buildings. It was stipulated at the trial that there were three parcels of lumber destroyed and in dispute, as follows: Parcel No. 1, located wholly within the planing mill and of the value of $605; parcel No. 2, located partly within the planing mill, but projecting outside thereof, and of the value of $160; parcel No. 3, located outside the buildings and of the agreed value of $246. As to this last item defendant claimed that it was 50 feet away from the main building, and because there was concurrent insurance on property within 50 feet from the buildings, that defendant was only liable for one-half the value of this item, which amount, viz., $123, was paid into court. Respondent, however, claimed that this item No. 3 was located within 50 feet of the mill buildings, and therefore was not covered by the other insurance. The only dispute at the trial concerning this item was whether it was within 50 feet of the buildings or without that distance. During the course of the trial, the court permitted oral evidence on the part of the plaintiff to the effect that the agent of the insurance company, when the application was taken for the insurance stated to the plaintiff that the policy was an 'unlimited policy,' meaning thereby that the policy covered lumber within the mill and adjoining building as well as lumber in the yards, and that plaintiff would not have taken the policy but for such statements, and also that, at the time the policy was delivered and afterwards, the agent stated to the plaintiff that the policy was an unlimited policy. The defendant objected to this evidence when it was offered, and moved to strike it out for the reason that the contract was in writing and this evidence was therefore inadmissible to vary the terms of the written contract. The application of the plaintiff for the policy was made upon a blank form furnished by the agent of the defendant. This application, so far as it is material here, was as follows:

'$ Nil--On 2-story frame shingle roof mill building and additions thereto, adjoining and communicating with 1-story frame shingle roof engine and boiler house attached, including foundations, capping and piling immediately thereunder, and log slides, if any, occupied as a wet log, steam power saw & planing mill. * * *

'$ Nil--On stock (incident to the business) manufactured, unmanufactured, in process of manufacture, and materials for manufacturing same, all while contained in the above described mill building and additions thereto, or in cars on tracks within one hundred feet of said building. * * *

'$1,000. On lumber, laths, shingles, pickets, mouldings, posts, and all other timber products, their own or held by them in trust, or on commission, or sold but not delivered, all while contained in their yards, or in sheds in their yards, or piled on or under platforms and tramways, docks or wharves, or in cars within fifty feet thereof. All the above described property situate on block 200 of tide flat lands, Whatcom, Wash.'

This application was signed by respondent on May 13, 1904. On the 16th day of May, 1904, the policy was issued by the defendant, containing the following clauses:

'$ Nil--On two-story frame iron roof building and additions thereto, adjoining and communicating with one-story frame iron roof engine and boiler house attached, including foundations, capping and piling immediately thereunder, and log slides, if any, occupied as a...