Clayburgh v. Agric. Ins. Co. of Watertown

SLOSS, J.

Action to recover six thousand dollars on a policy of fire insurance, covering a building in the city of San Francisco. Upon a trial before a jury, the plaintiff recovered a verdict for the amount claimed. The defendant appeals from the judgment entered upon the verdict, and from an order denying its motion for a new trial.

There was no denial of the fact that the insured building had, on the nineteenth day of April, 1906, been totally destroyed by fire, and that by its destruction plaintiff had suffered damage' to an amount exceeding his insurance. The

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only defense was that, on the eighteenth day of April, 1906, a part of the building had fallen, as a result of the earthquake occurring on that day. The policy contained this provision, “If a building or any part thereof fall, except as the result of fire, all insurance on such building or its contents shall immediately cease.”

The subject of the insurance was a five-story brick building on the southerly line of Geary Street, leased to a firm which occupied the whole of it as an art store. The defendant introduced in evidence a photograph of the building, taken on the morning of April eighteenth, from some point in a structure on the opposite side of the street. This photograph, taken after the occurrence of the earthquake, and before fire had attacked the building, showed that there had been some injury to plaintiff's building. The upper part of the walls had been shaken down to such an extent as to expose to sight the uprights supporting what appeared to be the roof of the building, and to allow a view across the top of the building between these supports. The testimony of witnesses was offered to show that the photograph fairly represented the condition of the building. On behalf of plaintiff there was evidence to the effect that the flat surface over the building, shown on the photograph, was not, in reality, the roof, but was merely a tin deck, built some three or four feet above the roof, and that its sole purpose was to provide an air space over the fifth story, in which the tenants were conducting operations for which they required an even temperature. It was, as explained by one of the members of the firm occupying the premises, “a superstructure that has nothing to do with the building, but was simply put there at our suggestion by the architect when the building was built for us.” This witness testified, further, that he had gone through the building after the earthquake, and had found the interior perfectly intact. No part of any wall or of the roof was broken from the fifth floor to the basement. Nothing had fallen except the cornice and a portion of the fire wall, which was located above the roof, to and beyond the tin deck. No part of the interior of the building was exposed to the elements and the tenants “could have gone right on” with their business. The architect who had designed the building testified, as did the witness just referred to, that the construction above the fifth floor,