Smith v. National Fire Ins. Co.

• Decision Date: 10 April 1918
• Docket Number: 285.
• Parties: SMITH v. NATIONAL FIRE INS. CO.
• Court: North Carolina Supreme Court

95 S.E. 562

175 N.C. 314

SMITH v. NATIONAL FIRE INS. CO.

No. 285.

Supreme Court of North Carolina

April 10, 1918

Appeal from Superior Court, Cumberland County; Connor, Judge.

Action by J. Edward Smith against the National Fire Insurance Company. Judgment for defendant, and plaintiff excepts and appeals. Reversed.

The courts look with disfavor upon forfeitures, and a stipulation in a policy which might avoid it does not have that effect if it in no way contributes to the loss.

This is an action on a fire insurance policy issued by the defendant company on April 24, 1917, and insuring certain lumber in the sum of $1,500 for 12 months from that date. The policy contained the following stipulation:

It is a condition of this contract that a continuous clear space of 200 feet shall be maintained by the assured between the property hereby insured and any woodworking establishment or any dry-kiln (except tramways upon which lumber is not piled), and such space shall not be used for the piling of lumber or timber products, but this shall not be construed to prohibit loading or unloading within, or the transportation of lumber and timber products across, such clear space otherwise this policy shall be void."

The material facts bearing on the liability of the defendant are as follows:

(4) That the lumber of the plaintiffs for which the present claim is presented was destroyed by fire on August 10, 1917, said lumber being located on the premises known as the D. R Graham land, Rennert township, Roberson county, N.C. (5) That at the time of said fire the lumber so destroyed was piled within less than 200 feet of an open-shed sawmill. (6) That from the issuance of said policy until within about three or four days of the fire above mentioned said sawmill was in continuous operation, said operation consisting in the sawing of logs into lumber, and cutting the lumber into sizes of varying length and width; that such operations were carried on by means of machinery, and in this connection the said sawmill was equipped with a steam engine, boiler, furnace smokestack, shafts, belts, and pulleys, and other equipment in general use in such plants. (7) That the lumber above described was, at the time of its destruction, piled in the same place where lumber had been piled at the time said policy of insurance was issued, and between the issuance of the policy and the time of the fire there was no communication between the parties in reference to the location of said lumber. (8) That the policy of insurance referred to was applied for by the plaintiffs in Philadelphia, Pa., was sent to Charlotte, N. C., and there made out upon the form approved by the state of North Carolina, and was then delivered to the plaintiffs in Philadelphia; that prior to the issuance of said policy there was no inspection by the defendant either of the lumber or the premises upon which it was piled, and no agent, officer or employé of the defendant had knowledge or notice of the location of said lumber in reference to said sawmill, either at the time said policy was issued or at any time between the issuance and the date of the said fire; and there was abundant space on said premises, more than 200 feet from said sawmill, upon which said lumber could have been piled. (9) That the rate of insurance, or premium, at which the said policy was issued, and the acceptance of said risk, were controlled or influenced by the condition in said policy "that a continuous clear space of 200 feet should be maintained by the assured between the property hereby insured and any woodworking establishment," etc. (10) That the plaintiffs had purchased the lumber insured from one E. J Graham, and immediately after said fire insurance policy was issued plaintiffs informed the said E. J. Graham that they had taken out insurance upon the lumber covered by said policy of insurance, and directed him to pile said lumber not less than 200 feet from said sawmill, and the plaintiffs supposed that said direction had been complied with, and at no time did the plaintiffs, or any agent of the plaintiffs, know that any portion of said lumber was within less than 200 feet of said sawmill. (11) That at the time when the fire originated, and for some days prior thereto, said E. J. Graham's timber supply for that plant had been exhausted, and he was about to remove the sawmill to another location, though said sawmill was started up a few days after the fire for the purpose of sawing a few logs on the yard, in which lumber the plaintiffs had no interest, and the lumber of plaintiffs, which they had purchased from said E. J. Graham, was being loaded and hauled as rapidly as possible, though the amount of said lumber specified in the proof made by plaintiffs to defendant was consumed by said fire, the lumber so consumed not having been thus loaded or hauled, and there was other lumber owned by plaintiffs at said plant which was not consumed. (12) That the value of the lumber consumed by fire and covered by the policy attached hereto was upwards of $1,500, and, if the defendant is liable on said policy, it is liable for the sum of $1,500 and interest on the same from October 10, 1917. (13) That the fire which destroyed the said lumber did not originate from said sawmill, but burned towards the mill building, and was extinguished within about 62 or more feet of the...