Slinkard v. Manchester Fire Assurance Co.

CHIPMAN, C. Action on insurance policy for loss of a combined harvester by fire. Plaintiff had judgment, from which and from an order denying motion for new trial defendant appeals.

Defendant issued its policy to plaintiff to cover a period of three months from June 25, 1896, at noon, “against all direct loss or damage by fire, except as hereinafter provided . . . , while located and contained as described herein, and not elsewhere, to wit, iioelve hundred dollars on combined harvester,. Haines-Houser, makers, while in use in Tulare County, Galif.” et cetera.

The court found that at the time the policy was issued the harvester “was being actually used in the field by plaintiff for the purpose of harvesting grain upon his ranch in Tulare county, and continued to be so used by him until the twenty-fifth day of July, 1896, when said harvester was placed in a shed upon the said ranch -of plaintiff; .... that the placing of said harvester in such shed was the usual manner in which such ma[597]ckinery is taken care of and provided in such neighborhood, and was a proper and careful manner for the safekeeping of such property.” The court found that the risk was not thereby increased, but materially decreased, and was less liable to loss by fire in said shed than when in use in the field. On September ' '26, 1896, while in said shed, the harvester was destroyed by fire without plaintiff’s fault.

The italicised words of the policy as shown above were in writing upon the-face of the policy; and except the signature, the nest of the policy was in print.

The liability of defendant depends upon two questions: 1. Was the harvester, at the time of the los$, “in use” within the meaning of the policy? and 2. Is section 2754 of the Civil Code .applicable to such case as this?

1. Without reference to the section of the Civil Code referred to, we think the words “while in use” were intended to be employed and have the effect to limit the liability of defendant to loss by fire of the harvester while being used for harvesting purposes, and do not cover the loss as it occurred. The liability would probably attach in an interval of disuse in the field—as at night, or the noon hour, or while undergoing temporary repairs where being used; for it would be a narrow, and we think unwarxanted, construction to hold that the policy covered those periods only while the machine was actually engaged in. cutting-grain and did not include temporary stoppages. But we think it would do violence to the language- used, as well as to the manifest intention of the parties, to hold that the policy covered ,a risk after the harvest was over and plaintiff had ceased using it and the machine was dismantled and stored away in a building. It had then ceased to be used in the sense contemplated. A policy insured against loss by fire a threshing machine engine and separator “while not in use.” The outfit had been used, but was hauled to another place and was left standing near a iarm house preparatory to its intended use a few days later, nnd while standing there was destroyed by fire. It was held that the machines were “not in use” within the meaning of the policy. (Minneapolis etc. Co. v. Insurance Co., 57 Minn. 35; 47 Am. St. Rep. 572.) This is a ease the converse of the one we have here, but it shows, and we think properly, that when we speak of