Opinion
Argued October 14, 1877
Decided January 15, 1878
James F. Starbuck for appellant. Leslie W. Russell, for respondent.
The insurance was upon the plaintiff's saw-mill, gang, water-power, and on his fixed and movable machinery, mill-tools and implements contained and used in the mill; and among the several pages of printed conditions and stipulations in the policy, is a condition that if the premises become "vacant and unoccupied," the policy shall be void. It is quite obvious that the parties did not intend by this provision that the saw-mill should be inhabited, or that any person should remain in it so as to watch and guard it against fires, in order that the plaintiff should have the protection of the policy. The saw-mill, when the policy was issued, was used during the day, and was left open night and day as saw-mills usually are. The plaintiff lived near it, and the mill had such oversight as under such circumstances he could give it. The saw-mill was not intended as a domicile, and the meaning of this condition, when used in a policy upon a dwelling-house, may be quite different from its meaning when applied to a saw-mill. The condition against vacancy, although designed mainly for cases where the building insured is used as a habitation, is, however, found in the policy, and effect is to be given to it. But it is to be construed in view of the situation and character of the property insured, and the contingencies affecting its use, to which this and other property of like character, similarly situated, is subject. The description in the policy shows that the defendant knew that the mill was operated by water-power, and as it was a saw-mill the insurer must be presumed to have known that saw-mills are or may be used as well for custom work as for sawing the logs of the owner; and as machinery was used for the operation of the mill, the fact that it was liable to break down and need repairs, must also have been within the contemplation of the parties when the policy was issued. The interruptions of the business and the discontinuance of the active use of the saw-mill by reason of low water, diminished custom or derangement of the machinery if held to be a violation of the condition, and to create a vacancy and non-occupation of the building within the true meaning of the condition, would greatly inpair the value of the contract as a contract of indemnity, and the result would be, that the contract would be deemed forfeited by the happening of events which might reasonably have been anticipated, and which were among the common incidents of the business carried on, on the insured premises.
We do not think this would be a reasonable construction of the contract. Delays and interruptions incident to the business of conducting a saw-mill, although involving a temporary discontinuance of the active use of the mill for sawing purposes, would not, we think, make the mill "vacant and unoccupied" within the meaning of the policy. Take the case of the insurance of a church building or school-house, or cider-mill. Would the fact that the church was closed for six days consecutively each week be a violation of the condition in question, or would the school-house in vacation time, or the cider-mill, when no apples were to be had, be without the protection of the policy? These illustrations serve to show that the condition against vacancy and non-occupation is to be construed and applied in view of the subject-matter of the contract, and of the ordinary incidents attending the use of the insured property.
The referee finds that the plaintiff's mill was not vacant and unoccupied at or before the fire, and this finding is conclusive, unless upon the uncontroverted facts a vacancy and non-occupation was established. We think the finding of the referee upon this question cannot be disturbed. The breaking of the journal the last of February, 1873, rendered the gang of saws temporarily useless, and the condition of the water making it difficult at that time to repair the journal, the repairs were not made. But the other saws continued to run without interruption to the last of March, when the sawyer who had been employed by the plaintiff left. He returned the first week in April, and did some sawing, and no more sawing was done until the last of April or first of May, when several hundred feet of lumber were sawed, and some planing was done. The fire occurred on the sixteenth of May, and no sawing had been done for sixteen or eighteen days before. But there were logs in the mill-yard and elsewhere, which the plaintiff intended to saw at the mill. There was lumber piled in the yard, and a small quantity was kept in the mill up to the time of the fire from which, from time to time, small sales were made — the last one the day before the fire. The evidence would not have justified the finding that the plaintiff had abandoned, or intended to abandon the use of the mill. There was no error therefore in the finding of the referee, that the mill did not become vacant and unoccupied within the meaning of the policy.
The policy also contains a condition that it shall be void, if the insured premises "shall be occupied or used so as to increase the risk," without the consent of the company. There was, at the time of the insurance, a planer in the mill, which was used from time to time in planing lumber cut at the mill, and this occasional use was continued after the policy was issued. It is claimed that this was an increase of the risk within the covenant. It is a conclusive answer to this position, that the covenant only prohibits a new and different use of the property from that to which it was applied when the policy was issued, by which the risk is increased. The continuation of an existing use, in the absence of warranty against such use or fraudulent representation or concealment, neither of which is alleged in the answer, is not a violation of the contract, and it is not material that the company did not know that the planer was used when the policy was issued. We have examined the exceptions to the admission and rejection of evidence, and find no error in the rulings of the referee.
The judgment should be affirmed.
All concur.
Judgment affirmed.