Trinity Universal Ins. Co., Dallas Tex. v. Wills, 4 Div. 90
| Decision Date | 12 July 1962 |
| Docket Number | 4 Div. 90 |
| Citation | 143 So.2d 846,273 Ala. 648 |
| Parties | TRINITY UNIVERSAL INSURANCE CO., DALLAS, TEXAS, v. W. C. WILLS. |
| Court | Alabama Supreme Court |
Mead, Norman & Fitzpatrick, Birmingham, for appellant.
Lee & McInish, Dothan, for appellee.
This is an appeal from a judgment for appellee on a policy of fire insurance. Appellee carried on the business of the Shorterville Veneer Company in three separate buildings. The property insured by appellant, and totally destroyed by fire, is described in the policy as 'the one story, open sided, metal roofed Veneer Mill, and * * * machinery and equipment and supplies contained therein'.
Appellant's defense is predicated upon a provision of the policy which provides: 'Permission is granted for the property described in this policy to be unoccupied or to cease operations in said property for a period of ninety days at any one time (including the 60 days allowed in the policy).' Similar conditions found in fire insurance policies insuring factories and mills have been found to be valid, reasonable and proper. 29A Am.Jur., Insurance, § 899, p. 107; 45 C.J.S. Insurance § 554, p. 297; 4 Appleman, Insurance Law & Practice, § 2841, pp. 782-3. As stated in Stone v. Howard Ins. Co., 153 Mass. 475, 27 N.E. 6, 11 L.R.A. 771 (1891), 'The general idea upon which the clause is found is that, when a manufacturing establishment is insured, the risk increases if the operation ceases for a length of time'.
The evidence is that appellee temporarily discontinued the production of veneer on June 29, 1959, because of depressed business conditions. The machinery in the insured building remained idle until the fire which occurred on November 19, 1959, a period longer than ninety days. During this time, however, appellee and a secretary-bookkeeper continued to work at the office building where appellee also conducted a farming business. There were purchases made of logs for the veneer business. Certain business licenses were obtained and payments were made for insurance, parts and other items of business expense chargeable to the veneer company.
Appellant contends that the cessation of the production of veneer in the insured building was such as to cease operations within the meaning of the policy. We are not persuaded that the language of the policy is sufficiently clear to that end, and are of the opinion the evidence presents an issue of fact properly reserved to the jury for decision. In Home Insurance Co. v. North Little Rock Ice & Electric Co., 86 Ark. 538, 111 S.W. 994, 23 L.R.A.,N.S., 1201, suit was brought on a fire insurance policy insuring a described building 'occupied as ice factory'. The policy contained a condition for forfeiture where the 'subject of insurance be a manufacturing establishment * * * if it cease to be operated for more than ten consecutive days'. The manufacture of ice was seasonal and discontinued for more than ten days prior to the loss. In construing the policy language the Arkansas court said:
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