McGammon v. Millers' Nat. Ins. Co.

• Decision Date: 14 October 1902
• Citation: 71 S.W. 160,171 Mo. 143
• Court: Missouri Supreme Court
• Parties: McGAMMON v. MILLERS' NAT. INS. CO. OF ILLINOIS.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 160

171 Mo. 143

McGAMMON v. MILLERS' NAT. INS. CO. OF ILLINOIS.^*

Supreme Court of Missouri, Division No. 1.

October 14, 1902.

INSURANCE — PROVISION FOR WATCHMAN — TIME FOR COMMENCING ACTION—PLEADING —MOTION IN ARREST OF JUDGMENT—REVERSIBLE ERROR.

1. The application for insurance contained the question, which was answered "Yes," "Do you agree to keep a watchman on the premises at all times when the machinery is not in operation?" also statements of facts as to the property, title, occupancy, use, incumbrance, etc., and concluded, "Applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property, and it shall be considered as the basis on which insurance is to be effected, and understood as forming part of the policy, as a continuing warranty during the life of the policy." Held, that the most that could be claimed of the watchman clause was that the obligation to keep a watchman when the machinery was not in operation was a condition subsequent, breach of which would release the insurance; and that the obligation was fulfilled by the employment of two competent men for that purpose, though one of them one night left his post, without the knowledge or consent of insured, after 10 o'clock, and the fire occurred before the other man, whose watch began at 12, came on duty.

2. The petition in an action on an insurance policy giving the insurer 60 days after proof of loss in which to make payment need not state that proof of loss was furnished 60 days before suit, but the allegation that plaintiff had performed all the conditions of the contract on his part is sufficient, under Rev. St. 1899, § 634, providing that, as to performance of a condition precedent in a contract, it may be pleaded generally that the party duly performed all the conditions on his part.

3. A motion in arrest of judgment reaches only a defect appearing on the face of the record proper.

4. Any error in overruling a motion in arrest of judgment on the ground that the petition does not show the action was timely brought is under Rev. St. 1899, § 865, not ground for reversal, because not materially affecting the merits of the action; it being conceded in appellant's brief that it was not, as a fact, prematurely brought.

Appeal from circuit court, Lawrence county; H. C. Pepper, Judge.

Action by J. G. McGammon against the Millers' National Insurance Company of Illinois. Judgment for plaintiff. Defendant appeals. Affirmed.

Henry Brumback and R. W. Barger, for appellant. W. D. Tatelow, for respondent.

VALLIANT, J.

This is a suit on a fire insurance policy. The property insured was a building with machinery, etc., constituting a flouring mill. In the written application for the policy which the insured signed, were this question and answer: "Do you agree to keep a watchman on the premises at all times when the machinery is not in operation? Yes." In addition to the question and answer quoted, the application contained statements as to the character and condition of the property, the title, etc., and at the conclusion was this: "And the undersigned applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property to be insured, and it shall be considered as the basis on which insurance is to be effected and continued in force; and the same is understood as incorporated in and forming a part and parcel of the policy, as a continuing warranty during the life of such policy." The answer pleads these terms of the contract, and avers that at the time of the fire the machinery was not in operation, and there was not a watchman on the premises. The reply is to the effect that the insured, in compliance with the terms of the contract, did employ two men, Bell Taylor and J. N. Robinson, to stay on the premises as watchmen when the machinery was not in operation,—Taylor to be on watch from 12 o'clock midnight to 6 o'clock in the morning, and Robinson from 6 in the evening until midnight; that they were competent and efficient men for the purpose, and agreed with the assured to faithfully perform the duty appertaining to the position, and that they did so; that when the fire occurred the machinery was not in operation, having closed down for the night; that Robinson, whose watch it was, was on the premises until 15 minutes past 10 o'clock at night, at which time he went over the mill and carefully examined everything, and then went to his home, to which he was called because of the sickness of his wife; that the fire occurred shortly before midnight, just before Taylor's watch was to begin; that Robinson left before his watch expired, without the knowledge or consent of the assured, and in violation of his agreement with assured, and in contravention to his duty as watchman. On the trial the plaintiff was permitted, over the objection of defendant, to prove the facts pleaded in the reply. The cause was tried by the court,—jury waived. The instructions given and refused show that the court adopted the theory that the facts pleaded in the reply amounted to a compliance by the insured with the terms of the contract in reference to keeping a watchman. There was a finding and judgment for the plaintiff for $7,015, and defendant appeals.

Two points were urged in the trial court, and the same are urged here, in defense of the action: First, that the obligation to keep a watchman while the machinery was not in operation was a warranty, on which the continuing of the contract of insurance depended, and the absence of the watchman at the time the fire occurred, the machinery then not being in operation, was a breach of the warranty, which relieved the defendant from the contract of insurance; second, that the petition fails to show that the debt was mature when the suit was begun.

1. The defendant is in the attitude of demanding the strictest construction of its contract. It combats the argument of the plaintiff that the agreement to keep a watchman should be given a reasonable construction, and insists on the letter. The plaintiff says: "When we agreed to keep a watchman, it was understood to mean that we would, in good faith, do all that reasonable, prudent men engaged in that kind of business would do to see that a watchman was on duty to guard the property when the machinery was not in operation, and that we have done." But the defendant says: "There is no room for construction. The contract requires a watchman to be in place, and you warrant that he will be there, every minute while the machinery is not in operation; and the obligation on our part to insure is ended when your watchman leaves his post, for a long or a short period, with or without your knowledge or consent." Parties may contract with each other to that effect, and courts will hold them to the contract, regardless of the consequences, but courts will not give to a contract such a harsh construction unless it is clear that it was so intended. Appellant itself is in no condition to invoke so strict a construction. If we should apply to the terms used in the application and the policy the strict rules of construction the appellant demands, there is room to question if the language used in reference to keeping a watchman is covered by the warranty clause at all. The question in the application is, "Do you agree to keep a watchman on the premises at all times when the machinery is not in operation." The answer is, "Ye...