Ragley v. Northwestern Nat. Ins. Co.

• Citation: 276 P. 537,151 Wash. 545
• Decision Date: 18 April 1929
• Docket Number: 21603.
• Parties: RAGLEY et al. v. NORTHWESTERN NAT. INS. CO.
• Court: Washington Supreme Court

276 P. 537

151 Wash. 545

RAGLEY et al. v. NORTHWESTERN NAT. INS. CO.

No. 21603.

Supreme Court of Washington

April 18, 1929

Department 2.

Appeal from Superior Court, King County; W. J. Steinert, Judge.

Action by Max Ragley and another against the Northwestern National Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Guy E. Kelly and Thomas MacMahon, both of Tacoma for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondents.

PARKER J.

The plaintiffs, Ragley and Neilsen, seek recovery upon a fire insurance policy issued by the defendant, insurance company insuring their dwelling house, situated in Seattle, against loss or damage by fire in an amount not exceeding $1,000, for a three-year term beginning October 1, 1926; the dwelling house having been damaged by fire on May 14, 1927. Trial upon the merits in the superior court for King county, sitting with a jury, resulted in verdict and judgment awarding to the plaintiffs recovery in the sum of $466.67, as prayed for from which the defendant has appealed to this court.

Following an appropriate description of the premises by name of street and house number in Seattle, the policy specifies the insurance as follows: '$1,000 on the shingle roof frame building, while occupied only for dwelling house purposes.' Other portions of the policy specify a number of conditions, in part, as follows: 'This policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, * * * if the hazard be increased by any means within the control or knowledge of the insured, * * * or if any change other than by the death of an insured, take place in the interests, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or by judgment or by voluntary act of the insured, * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.' We quote these specific conditions as bearing upon the question of whether or not the general words above quoted, specifying the insurance 'while occupied only for dwelling house purposes,' shall be read literally and unqualifiedly.

At the time of the issuance of the policy and until the damage of the house by fire, Ragley held legal title to the premises. During the same period the premises were held by Neilsen under contract of sale from Ragley, Neilsen being entitled to possession and control of the premises under that contract. The policy was indorsed by appellant recognizing the existence of that contract and making loss, if any, payable to Neilsen and Ragley jointly. On March 20, 1927, Neilsen rented the premises to one Wilson for dwelling house purposes. Wilson then commenced and continued to use the house exclusively for that purpose in so far as Ragley or Neilsen was informed, or had any cause to believe, until the house was damaged by fire on May 14, 1927. After the fire, proofs of loss were duly presented to appellant and other insurance companies also liable upon concurrent insurance. An adjuster for the several insurance companies, including appellant, appraised the total fire damage to the house at $2,100, of which it is conceded $466.67 would be an obligation of appellant owing to Ragley and Neilsen, unless the policy was rendered void and appellant thereby absolved from liability by reason of the use of the premises other than for dwelling house purposes at the time of the fire. Appellant's sole defense is that at the time of the fire the house was used for the unlawful manufacture of intoxicating liquor.

Counsel for appellant requested the trial judge to give to the jury the following instruction: 'You are instructed that...