Shoshone Concentrating Co. v. Hamburg-Bremen Fire Ins. Co.

• Decision Date: 23 August 1911
• Citation: 117 P. 500,64 Wash. 638
• Parties: SHOSHONE CONCENTRATING CO. v. HAMBURG-BREMEN FIRE INS. CO.
• Court: Washington Supreme Court

117 P. 500

64 Wash. 638

SHOSHONE CONCENTRATING CO. v. HAMBURG-BREMEN FIRE INS. CO.

Supreme Court of Washington

August 23, 1911

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by the Shoshone Concentrating Company against the Hamburg-Bremen Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed, and case dismissed.

Goodfellow, Eells & Orrick and Happy, Winfree &amp Hindman, for appellant.

Belden & Losey, for respondent.

MOUNT J.

The plaintiff brought this action to recover upon a fire insurance policy. The case was tried to the court and a jury. At the close of plaintiff's evidence, the defendant moved for a nonsuit, and again at the close of all the evidence defendant moved the court for a directed verdict, upon the ground that the evidence failed to show a compliance with the terms of the policy. These motions were denied. The jury returned a verdict in favor of the plaintiff, and the judgment followed. The defendant has appealed.

The following facts are not disputed in the case: On November 28 1908, the defendant issued to the plaintiff an insurance policy for $2,000 on a reconcentrating plant owned by the plaintiff near the town of Sweeney, Idaho. The policy contained a clause as follows: 'It is warranted by the assured that, whenever any of the following named parts of the plant described in this policy, to wit, concentrator or re-treating plant and machinery therein, are idle or not in operation for any cause whatever, competent watchmen shall be employed and due diligence used to keep a continuous watch both day and night in and immediately around said parts of the plant. If any of the above named parts are idle or not in operation for a period of more than thirty days without the written consent of this company, this policy shall be void.' At the time the policy was issued the mill plant was in operation. On December 12, 1908, the mill was closed down, and defendant's agent informed the plaintiff that it would be necessary to obtain day and night watchmen. The plaintiff employed two watchmen, being the day and night foremen for the Shoshone Concentrating Company, a mill in operation located from 600 to 1,200 feet distant from the plaintiff's mill. It was agreed between the plaintiff company and these two men that the latter should attend to their duties as foremen in the Shoshone Company's mill, and, while on duty there, watch the idle plant of the plaintiff as their duties would permit. It appears that they were not constantly employed, and that their duties called them out to the dump of the Shoshone mill about every hour, and that while there they were in view of plaintiff's mill and about 600 to 800 feet away. The watchman on day duty was given the keys to the plaintiff's mill, and went down there about four times per week and examined the mill to see that it was all right that water was kept in barrels on each floor, and that buckets were handy thereto. ...