Port Blakely Mill Co. v. Hartford Fire Ins. Co.

• Decision Date: 23 October 1908
• Citation: 50 Wash. 657,97 P. 781
• Parties: PORT BLAKELY MILL CO. et al. v. HARTFORD FIRE INS. CO.
• Court: Washington Supreme Court

97 P. 781

50 Wash. 657

PORT BLAKELY MILL CO. et al. v. HARTFORD FIRE INS. CO.

Supreme Court of Washington

October 23, 1908

Appeal from Superior Court, Kitsap County; John B. Yakey, Judge.

Action by the Port Blakely Mill Company and another against the Hartford Fire Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Granger & Magill, Hughes, McMicken, Dovell &amp Ramsey, and W. S. Goodfellow, for appellant.

Titus &amp Creed, Walter S. Fulton, C. D. Sutton, and Hastings &amp Stedman, for respondents.

CROW J.

This action was commenced by the Port Blakely Mill Company, a corporation, and the Detroit Trust Company, a corporation against the Hartford Fire Insurance Company, a corporation, to recover on certain insurance policies for a loss sustained by fire. From a judgment in favor of the plaintiffs, the defendant has appealed.

The appellant contends that the trial court erred in denying its challenge to the sufficiency of the evidence, in entering judgment for respondents, and in refusing to enter judgment in its favor. The respondents sued upon five policies of fire insurance, written by appellant upon a large milling plant owned by the Port Blakely Mill Company, upon which the Detroit Trust Company held a mortgage, and which plant was destroyed by fire. Proofs of loss were made, and the undisputed evidence shows that the appellant denied its liability on the sole ground hereinafter mentioned. It was stipulated that, if the respondents were held to be entitled to recover, their recovery should be for the sum of $31,942 and interest, and judgment was so entered. Each policy had attached thereto a typewritten slip or rider, containing, with other stipulations, the following material provision: 'Warranted by the assured that due diligence be used that the automatic sprinkler system shall at all times be maintained in good working order.' The automatic sprinkler was a device installed in three sections, and so constructed that in case of fire the unusual heat would automatically open certain valves, and cause the buildings to be flooded with water. The respondents pleaded the policies and riders, setting the forth as exhibits which were made a part of the complaint. They alleged that on April 22, 1907, the mill was destroyed by fire; that notice thereof was given to appellant on April 23, 1907; that within the proper time due and sufficient proofs of loss were furnished; that no objection was made thereto; that demand for payment had been made upon the appellant, and that it had denied any liability. The following allegation, directly involved in this appeal, was also made: 'That in all respects each of these plaintiffs has duly performed and complied with all the terms, provisions, and conditions of said policy on its part to be performed or complied with, and that more than 60 days have elapsed since the terms, provisions, and conditions of said policy were duly complied with by said plaintiffs.'

The appellant by its answer specifically denied this allegation of performance, and affirmatively alleged: '(1) That at the time of the issuance and delivery of said policy of insurance the premises thereby insured were equipped with an automatic sprinkler system, for the purpose of protecting the property so insured from loss and damage by fire, and by reason thereof a reduction of 50 per cent. was made in the rate of said insurance, and the premium paid to this defendant therefor. (2) That in and by the terms of said policy of insurance it was expressly covenanted, among other things, that the said assured warranted 'that due diligence be used that the automatic sprinkler system shall at all times be maintained in good working order.' And it was further, in said policy of insurance, expressly stipulated and agreed that the entire policy shall be void 'if the hazard be increased by any means within the control or knowledge of the insured.' (3) That the said automatic sprinkler equipment for the mill plant of the said plaintiff the Port Blakely Mill Company consisted of three or more separate divisions, installed for the purpose of affording fire protection to different portions of said mill plant, for the damage to which recovery is sought in this action; that water was supplied to said system through main pipes connecting with reservoir maintained by said mill company, and the water supply in each of said divisions was furnished and controlled through and by means of an automatic valve, controlled by air pressure; that the said sprinkler system, when properly maintained and in proper working order, was supplied with water in such quantities, and with such pressure upon the valves used in the said system, as that the heat produced by a fire in or about said mill would, through the melting of the sprinkler heads attached to the said system, release and open the said valves, and permit the water to flow through the same and out through the pipes distributed through the said mill, and cause the said water to be sprinkled upon the fire; that beneath each of said automatic valves was a screw valve, by which the water from the main pipe could be wholly shut off from said valve. (4) That on or about the 1st day of April, 1907, the said screw valve beneath the automatic valve, in what was known as the 'No. 3, automatic sprinkler division' in said mill plant, being the automatic sprinkler division which supplied fire protection to the eastern portion of said mill, was caused by the said plaintiffs to be screwed down, and the pipes connected with said valve to be removed, altered, and changed, and because and by means thereof the said water was wholly turned off from the said division, and the said plaintiffs carelessly and negligently, and without the exercise of due diligence by them, or either of them, caused and permitted the said valve to be so closed down, and said pipes to be so altered, removed, and changed, and carelessly and negligently caused and permitted the said No. 3 sprinkler division to be and remain out of good working order and without any supply of water, and to be wholly useless and ineffectual as a means of fire protection from the said 1st day of April, 1907, continuously until after the fire and the damage caused thereby, on the night of the 22d day of April, 1907, as alleged in plaintiffs' complaint.'

Respondents replied with denials, and, in substance, alleged, that on April 1, 1907, it became necessary for the Port Blakely Mill Company to make certain repairs in, and extensions of, the mill and automatic sprinkler, which repairs and extensions were permitted under the terms of the policies; that for such purpose division No. 3 of the automatic sprinkler system was necessarily shut down until April 21, 1907, at which time the...