O'Neill v. Union Assurance Soc'y, Ltd.

SHAW, J.

In these actions the plaintiff sued to recover upon three policies of insurance issued to him, one of them by the Union Assurance Society, Limited, the other two by the Law Union and Rock Insurance Company, Limited. In each of the cases the verdict was for the plaintiff and judgment‘was entered thereon. Defendants each moved for a new trial and the motions were denied. The appeals are from the judgments and from orders refusing new trials. The two cases were tried upon the same evidence and the record presents them in one transcript.

The property insured and the fire which damaged and destroyed it were the same as those considered in the opinion this day filed in the two cases of

O’Neill

v.

Caledonian Ins.

Co. and

O’Neill

v.

American Ins. Co., ante,

p. 310, [135 Pac. 1121], S. F. No. 6179, in which the judgments and orders in favor.of O’Neill were affirmed. The three policies sued on in the two actions presented in the record in S. F. No. 6180 are of the same form as those.involved in S. F. No. 6179. The evidence is also substantially the same and the propositions of law presented and decided there are also involved in these actions. The discussion and conclusions set forth in that decision are equally applicable here. We refer to them, without repeating them, as a part of the opinion of the court applicable to these eases. It is necessary, however, to discuss some additional points not presented in the other cases.

[320]

Instruction 16 stated that the right of plaintiff to recover was not affected by the presence on the premises, at the time of the fire, of any gasoline which

came into

the premises in the reservoirs of automobiles. In criticism of this instruction it is suggested that it would allow the jury to find for the plaintiff, although thousands of gallons of gasoline might have been brought into the building in the reservoirs of machines and thereafter emptied into gasoline tanks and kept stored in the building. The criticism is not based upon any facts or any evidence in the case. No such proceedings were shown. It is obvious that the instruction referred to the gasoline brought into the building in the reservoir of Warlow’s machine at the time it was left for repairs and which was afterward drained out of the reservoir while it was being repaired. The 'jury could not have misunderstood it. This, as shown in the other opinion, was not a violation of the policy.