Thurston v. Burnett & Beaver Dam Farmers' Mut. Fire Ins. Co.

• Decision Date: 08 February 1898
• Citation: 98 Wis. 476,74 N.W. 131
• Court: Wisconsin Supreme Court
• Parties: THURSTON v. BURNETT & BEAVER DAM FARMERS' MUT. FIRE INS. CO.

98 Wis. 476

74 N.W. 131

THURSTON

v.BURNETT & BEAVER DAM FARMERS' MUT. FIRE INS. CO.

Supreme Court of Wisconsin.

Feb. 8, 1898.

Syllabus by the Judge.

1. Under the rule that where the language of a contract is plain and unambiguous, and where words or terms in a contract may be reasonably construed in either of two ways but extrinsic evidence is not resorted to for the purpose of aiding in the construction, the proper construction of the contract is for the court. The proper construction of language in an insurance policy, to the effect that “fires caused by the use of steam engines on the premises insured, other than threshing machine engines using coal for fuel with sufficient wood to kindle or start the fire,” was a question solely for the court.

2. Such clause prohibited the use of wood, except to efficiently start combustion in the coal; the use of wood thereafter was within the excepted risk; and when wood was so used, up to a short time before the fire occurred, such fire was not caused by an engine “using coal for fuel with sufficient wood to kindle or start the fire,” because coal was the last fuel put into the firebox before the fire occurred.

3. The evidence being to the effect that wood was used to make power for a considerable length of time, and then coal was put into the furnace as needed, and as a helper, for about 15 minutes, which disappeared before the fire occurred, such fire was clearly within the excepted risk, and there was no question on the subject to be left to the jury.

Appeal from circuit court, Dodge county; Warham Parks, Judge.

Action by Tabor Thurston against the Burnett & Beaver Dam Farmers' Mutual Fire Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed.

Action to recover on two policies of fire insurance. The property destroyed was grain in stacks. The fire was started by sparks from a threshing machine engine in operation on the premises. A by-law formed a part of each contract of insurance, which was as follows: “This company will not hold itself liable for loss caused by the use of steam engines on the premises, except steam threshing engines using coal as fuel, with sufficient wood to kindle or start the fire.” The principal disputed question on the pleadings and evidence was whether the fire occurred through a cause not covered by the contracts of insurance, by reason of the by-law referred to. A special verdict was ordered, containing questions covering the subject in dispute, such questions being as follows: “(1) What was being used for fuel in the engine when the stacks of wheat were destroyed? (2) Was more wood used in the engine than was sufficient to kindle or start the fire in the engine? (3) At the time of the fire, was wood being used to produce power to run the engine?” The court instructed the jury, among other things, that there is not any great conflict in the evidence. “The question is, do you find for the plaintiff or the defendant? If the plaintiff was using, at the time the fire occurred, wood, for the purpose of producing power to do the threshing, he cannot recover. If he was only using wood for the purpose of kindling or starting the fire, if it had got down, he can recover.” In respect to the second question the court said: “You are to determine from the language what was intended,--what is the fair, reasonable, ordinary meaning of the langauge used? You are to say as to what it means,--the ordinary signification among men. What does it mean to kindle or start a fire?” In regard to the first question the court said it was the only vital question in the case; “What was being used when the stacks of wheat were destroyed,--wood, coal, or both? That second question presents the subject more decidedly; and the next question throws some light on the dispute.” The court later said, “The meaning of the first question is, what was in the fire box at the time the fire occurred?” and, generally, said that the three questions were practically the same. “Were they using wood to kindle or start up the fire, or to produce power?” That the jury should first determine in their minds, as if there was no special verdict, whether the machine, under the evidence, was being run in accordance with that provision of the policy, or in violation of it. And further said, “When you get the question settled, reduce your answers to writing, to the questions, so they will conform to the real spirit of the contract.” All the questions, and those upon which the right to recover depended, were answered in favor of the plaintiff. Numerous exceptions were filed to the charge, and there was a motion to set aside the verdict as contrary to the evidence and to grant a new trial, made, denied, and the ruling duly excepted to. Judgment was...