Benicia Agricultural Works v. Germania Insurance Co.

McFarland, J. This is an action to recover for the loss of a certain harvesting machine and outfit, insured by defendant against loss from fire. The court below granted a nonsuit, and rendered judgment for defendant. From the judgment, and from an order denying a new trial, the plaintiff appealed.

The policy ran in terms for a period of one year from June 12, 1890, to June 12, 1891; but, after reciting the character of the property, it contained the following clause: “ All while owned by assured, and known as the Harvest King harvesting machine and outfit, and operating in the grain-fields, and in transit from place to place, in connection with harvesting in Fresno County, of California.” It appeared that the harvesting season in Fresno County usually ends about the 1st of September; that in 1890 it was somewhat longer than usual; that the insured, appellant’s assignor, finished harvesting that year in September, or about the 1st of October; that he then took the machine home to his ranch, having entirely finished using it in the business of harvesting for that year; that he separated the headei from the balance of the machine, so that the whole machinery could be more readily placed in his shed; that he was prevented by other work from putting it in his shed, and that it remained near the shed until the 18th of the following November, at which time it was destroyed by fire. It is clear, therefore, that it was not burned while “ operating in the grain-fields, or in transit from place to place, in connection with harvesting in Fresno County.”

But appellant now contends, and indeed that is nearly its whole contention, that because the policy [471]runs in terms for a year, respondent is responsible for the loss, whether the fire occurred during the harvesting season, or at any other time during the year. But to maintain that contention would be to hold that the most prominent part of the policy could be ignored entirely. The plain, clear meaning of the language used is, that the respondent would be responsible if the property at any time between June, 1890, and June, 1891, should be destroyed by fire while operating in the grain-fields, or in transit from place to place, in connection with harvesting. This provision is in the body of the policy, and not in the long memoranda printed on the back of it, and made a part thereof, and must be considered as a leading clause of the contract, to which the attention of the parties was clearly called. And it was clear that respondent was not to be liable for any loss by fire, unless it occurred while the said machine was operating, or in transit, in connection with harvesting, as before stated. Indeed, this contention which appellant now makes is barely consistent with the complaint, which alleges that the loss occurred while the machine was operating in the grain-fields, or in transit, or with the specifications of error, which include the proposition that it was.so operating, or so in transit. The appellant took exceptions to the rulings of the court excluding certain offered evidence by which appellant sought to show that the risk or hazard was not increased by the fact that the machine was not employed in the fields, or in transit, at the time of the fire; but those objections and that testimony were immaterial under the view which we have taken of the contract itself.