Miller v. Spring Garden Ins. Co.
| Decision Date | 03 February 1913 |
| Docket Number | 2,140. |
| Citation | 202 F. 442 |
| Parties | MILLER v. SPRING GARDEN INS. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
On November 17, 1910, the defendant executed and delivered to the plaintiff a policy of insurance, insuring him for the term of one year from that date against all direct loss or damage by fire, in the sum of $5,000, on his stock of goods wares, and merchandise while contained in his one and two story frame, shingled roof building, and additions adjoining and connecting, or in cellars or basements thereto. On January 2, 1911, the insured property was totally destroyed by fire. The present action was brought to recover the amount of the insurance. To the complaint two defenses were pleaded First, that after the issuance and delivery of the policy the plaintiff, contrary to the terms thereof, kept, used and allowed gasoline on the premises described in the policy, and that thereby the policy was rendered void and of no force or effect; second, that between October 18, 1910, and January 2 1911, plaintiff built on to the building described in the complaint an addition thereto 30 feet wide by 50 or 60 feet long, at an expense of about $5,000, and in so doing employed a mechanic and eight or ten laborers and assistants, changed the partitions and doors of the building, put in shelves and other permanent and temporary fixtures and improvements whereby the policy was rendered void. The policy provided that it should be void, unless otherwise provided by agreement indorsed thereon or added thereto, if the hazard were increased by any means within the control or knowledge of the insured, 'or if mechanics be employed in building, altering or repairing the within described premises for more than 15 days at one time,' or if gasoline were used or allowed on the premises. There was a typewritten slip, or rider, attached to the policy, which contains this provision: 'Permission granted to effect other insurance; to make ordinary alterations and repairs; to burn kerosene of standard quality for lights, lamps to be filled during daytime only. ' The case was tried before the court without a jury. At the close of the case, the defendant moved for judgment, which motion was denied, and judgment was rendered for the plaintiff.
W. W. Hindman and Happy, Cullen, Lee & Hindman, all of Spokane, Wash., for plaintiff in error.
Cannon, Ferris & Swan and Edelstein & Weinstein, all of Spokane, Wash., for defendant in error.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
Error is assigned to the admission of testimony as to conversations between the plaintiff and the insurance agent who procured the policy concerning the alterations that were being made in the plaintiff's building, and error is assigned to the conclusion of the court that the plaintiff had not violated the provisions of the policy by having carpenters and mechanics engaged in building the premises for a period of more than 15 days after the policy was executed and delivered, without the consent of the defendant, and in holding that the work done upon the building was ordinary alterations and repairs within the permission contained in the rider to the policy. At the time when the policy was issued, one Harvey was the local agent of the defendant at Spokane, and Rogers & Rogers were insurance agents and brokers representing certain other insurance companies at Spokane. Prior to the issuance of the policy, one Pool was an insurance solicitor representing Rogers & Rogers. He went to the plaintiff while the building was in progress in October 1910, and solicited insurance. The plaintiff took a pencil, and showed him the alterations of the building which he was in the process of making. Afterwards, Mr. Rogers, of the firm of Rogers & Rogers, came to see the plaintiff, and in his conversation with the plaintiff the latter explained to him how he was changing and adding to the building. Rogers & Rogers placed all the...
To continue reading
Request your trial
-
Rotberg v. Dodwell & Co.
...U.S. 1, 19 L.Ed. 361; West v. Smith, 101 U.S. 263, 25 L. Ed. 809; Graham v. National Surety Co., 8 Cir., 244 F. 914; Miller v. Spring Garden Ins. Co., 9 Cir., 202 F. 442; Ryan v. Becker, 136 Iowa 273, 111 N.W. 426, 14 L.R.A., N.S., 329; Fayter v. North, 30 Utah 156, 83 P. 742, 6 L.R.A.,N.S.......
- Stone & Webster Engineering Corp. v. Melovich
-
Charles Dowd Box Co. v. Fireman's Fund Ins. Co.
...Church of Rockland v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475, 479--480, 33 N.E. 572, 19 L.R.A. 587. See also Miller v. Spring Garden Ins. Co., 9 Cir., 202 F. 442, 443--445. Otherwise the permision to build would be illusory. There was evidence from which the jury could have found that th......
-
Walter v. Rowlands
...622, 51 L. Ed. 1026; Standard Scale & Supply Co. v. Reiter (C. C. A.) 199 F. 91; Neal v. Akers (C. C. A.) 286 F. 903; Miller v. Spring Garden Ins. Co. (C. C. A.) 202 F. 442. The foregoing considerations are also applicable to the assignment that it was error to permit the defendant Lamont R......