The Kansas Mill Owners and Manufacturers Mutual Fire v. Metcalf

• Decision Date: 07 May 1898
• Docket Number: 10659
• Citation: 53 P. 68,59 Kan. 383
• Parties: THE KANSAS MILL OWNERS AND MANUFACTURERS MUTUAL FIRE, INSURANCE COMPANY v. E. W. METCALF
• Court: Kansas Supreme Court

53 P. 68

59 Kan. 383

THE KANSAS MILL OWNERS AND MANUFACTURERS MUTUAL FIRE, INSURANCE COMPANY v. E. W. METCALF

No. 10659

Supreme Court of Kansas

May 7, 1898

Decided January, 1898.

Error from Douglas District Court. A. W. Benson, Judge.

Judgment affirmed.

W. W Nevison, for plaintiff in error.

A. W Benson and W. C. Spangler, for defendant in error.

OPINION

DOSTER C. J.

Mrs. S. E. F. Arter was the owner of a mill building, fixtures and machinery, and miller's stock. It was insured by the plaintiff in error. The amount of the policy was payable in the event of loss to the defendant in error. The mill building, with other insured property, was destroyed by fire about 12 o'clock at night. In the application for the insurance the question was asked: "Do you agree to keep a watchman on the premises at all times when (the mill is) not in operation?" This question was answered, "yes." This question and its answer, of course, formed a part of the insurance contract. Suit was brought upon the policy by the defendant in error, the assignee under the contingency of the loss which occurred. Verdict was returned and judgment rendered for him, and the defendant, the Insurance Company, prosecuted error to this court.

The testimony in behalf of the plaintiff tended to show that, in the evening preceding the fire, the mill was shut down for the night; that Mrs. Arter engaged one Randolph as watchman during the time it was shut down; that he in turn engaged one Aldrich, the engineer of the mill, to act in his place; that Aldrich was in and about the mill until 10 o'clock P. M., and then went to a tent about two hundred feet distant, which was used by him and his family for household purposes; that he sat in the tent until he heard the alarm of fire; and, going out, he discovered the mill in flames. The special findings of the jury were in accordance with this testimony. Two questions arise. First. Was the suspension of the work of the mill over night a cessation of its operation, within the meaning of the agreement contained in the application for insurance? Second. If so, was a watchman kept upon the premises during such non-operation of the mill? In relation to these two questions the court below instructed the jury as follows:

"The language used in this agreement is to be taken in its ordinary sense and significance, and the agreement should be construed in the light of common observation and experience. Still some suggestions may be helpful. Thus, when a contract requires a thing to be done, but is silent as to the particular manner of performance, the law holds that it must be reasonable in this respect, having regard to the object and purpose of the stipulation, which, in this case, is the safety of the property. If it is done in the manner in which men of ordinary care and skill in similar business manage their own affairs of like kind, it is ordinarily sufficient. A mere temporary absence of the watchman from the premises in circumstances where a man of reasonable prudence would do the like, would not constitute a...