1,1885, he cannot be permitted to claim that payments ma,de to Creigh.. ton were unauthorized, and therefore at the risk of the debtor. The evidence sustains the plea of paYUlent, and consequently the bill must be dismissed at cost of complainants'.
BRIGHTON MANUF'G Co. v. READING FIRE lNs. Co.
(Circuit Court, N. D. Illinois. July 25,1887.) ,
INSURANCE-CONDITIONS-INCREASE OF RISK.
A policy of insurance contained a clause that if the was $ncreased with the knowledge of insured, and without notice to thecotnpany, the policy should be void. _ A manufacturin/f company' stopped worlltfor a few days, cotton being high, andl repaired Its machinery meantime, Whereby no use could be made of a steam-pump and hose, connected with the engine, in case of fire. The policy permitted stappage:for repairs. HelrJ" that there was no increase of risk by thiil temporary stoppage.
SAME-CONl>ITIONS-VACANT AND UNOCCtTPIED PREMISES.
A policy ofinsurance provided that iI the building insured became vacant and unoccupied. without the knowledge and consent of the company, the pol· icy should be void. Defendant, a manufact;.Jring company, temporarily stopped work, and repaired its machinery, the night and day watchmen were on duty, and the employes were at and :about the factory from its closing until it burned. Held, that the building was in no sense vacant and unoccupied.
At Law. Suit to recover on a fire insurance policy. ,; The Brighton Manufacturing Company, plaintiff, sued the Reading Fire Insurance Company for loss by fire. E. 'W. RU88eU, for Gary, Cody &:Garyand Fred'k Ullman. for defendant. BLODGETT, J. This is a suit upon a policy issued by the defendant company, insuring the cottou manufactory and the machines therein owned by.the plaintiff, situate in the south-western portion of the city of Chicago, for the sum of $1,500, from the twenty-third day ofFebruary, 1885, to the twenty-third day of February, 1886. The factory and machinery covered by the policy were destroyed by fire on the sixteenth day ofJuly, 1885,and the loss was substantially total. The facts in the case as they appear from the proof are briefly these: The plaintiff was the owner of the factory and machinery in question, and in possession and operating the same, up to the first of May, 1885, when the same was leased to W. S. Baker and Thomas Kelley, for the term of one year from that date. Kelley and Baker entered into possession, and the leasing of the factory to them was duly assented to by the defendant. Baker and Kelley operated the factory up to the eighth ofJuly, when they stopped manufacturing, and discharged the most of the. employes.. The engineer, firemen, and the employes operating the spinning and batting machinery, were discharged. A portion of the employes connected with the dyeing-house, and some employes connected with the packing"room, were
BRIGHTON HANOi"O CO.
READING FIRE INS. 00.
retained for the purpose of fitting for market the manufactured goods. The cause of suspending the manufactory seems to have been twofold. The grade of cotton required for the manufacture of the goods in which the factory was chiefly employed was hard to obtain just at that time at such prices as would· enable them to manufacture at a profit, and the machinery needed repairing and overhauling for the ensuing year's work. The employes were notified that their services would be dispensed with for the time being, but that the factory would soon siart up, and that theywo'uld have noti<le when they were wanted again. Arrangements were madeto make the necessary repaits to the machinery and build,;. ings j and the work of preparing for market the manufactured goods went on under a sufficient corps of employes, so that the most of the goods were ready fot market on July 16th. By 'a stipulation between the parties, the amount which the plaintiff would be entitled to recover upon the policy has been agreed upon and adjusted between them, sub ject to any defense which the defendant may have against their liability upon the policy under the facts in the case. . The policy contains this clause: . "If,dudng the existence of this policy, or any renewal thereof, the ris.k shaUbeincreased by any means wha.tever'with the knowledge of the insured, and. he shall neglect to notify the company thereof, and have the same inpaying therefor such additional premium as shall be demanded, ... ... ... _or allow the building herein to become ,vacant and unoccupied notice to and consent of the company.'then, and in every such case, this policy shall be null and void." The policy also contains this clause in the written portion thereof: "Other insurance permitted without notice, and permission granted to set up-and operate machinery, and make such repairs and alterations as may be necessary to keep the in good order during the term of this policy without prejudice thereto." _ The defenses set up are: (1) That the risk was increased with the knowledge of. the assured, of which no notice was given to the defendant, /lnd no indorsement thereon made on the policy; (2) that plaintiff allowed the premises to become vacant and unoccupied, without notice to and consent of the defendant. The only fact upon which the defense of increase of risk is based is the stoppage of the manufactory, whereby, as it is claimed, the engine not being ill operation, no use could be made of the steam-pump and hose which were in the factory for the purpose of extinguishing fires; while it is claimed by defendant that, if the engine had been in operation, it is possible that the fire might have been extinguished. The testimony as to whether the stopping of the manufactory increased the risk is conflicting. Undoubtedly it is a question of fact to be determined by the court ill place of a jury whether the stoppage of the factory increased the risk Of not. I do not think that, in the light of the proof in this case, the mere stoppage of the machinery can be held to have increased therisk;'but, even if it did, there was no covenant orundertaldng on the part of the assured that these devices for the purpose of extir.guish.
FEDERAL REPORTER·. ·
be kE1pt or maintained in the factory, and the assured undouPWdly had the right to reQloye. theIllif it saw fit. In other words, no obligation oothe part of the assured to keep this force-pump andhos!l in the factory for the purpose of protecting the property against fi,re. Tha.tthe machinery was to stand stillpart,;ofthetime was undoubtedly in the contePlplation of the,pjj,rties at the time of the issue of tPje, polioy,. . The polioy ilpecially pern:lits the stoppage for repairs and and it was stopped over night l!Jlq S,undays, when it w.ouldbe in all. respactsas mu.ch exposed. to fire as it.·was during the between the time the machinery was. stopped eight .dlloYs that and the time of the lam, therefore, clearly of· opinion that there was no increase of risk by stopping manufacturing by the lessees, as the stoppQ.ge;was only tet;nporary:, for a ,purpose permitted by the policy. Th!l fact that the then price of cotton furniehedlUlothermotive for stoppingrfiot that time does not defeat thisrightto stop.a.nd,still retain the policy in, ,foree. .i . . ' , All to' tbe.seeondl d.efense,· that the allowed.· to become vacant and unoccupied, I do not think that in any sense this clause can to have been violated by ·the.plaintiff.The, in ,qhafge·of,the .usual superintendent of thecompanyjthe"night.and.day watehmenwere on duty all the time the 'machinery lay:.stillj employes were at:' the'factory and ,about it all the ·time ftom the eight,hday of July, when the 'YcJrk was Sli!!pended,uqtil the building W'asbut1iedi.and inno senae d<5es it to: me that the' preDiiseecl1-Il ,be.sald.to, · cant and unoccupied. It is true they were as denseiy occupied by in'the working'hours of these eight days as ,they were dui'ing thoseibo,Q.:t'8when t.he factory but, stillthe.J.le were enough .people about to retain possession, and keep watch against intrusion, and togive''riotice, ira. flreshol.lld break out or othel."(fangerarise to the property involving the risks under the policy. . ,'. " TtJ,in, therefore, Qf'.opinion that the, defense is not Bustailled by the proofj ,and the iss11e is found for theplaiiltiff, with ,damages according to. the adjustment, .and interest from the time the ,loss became payable.
Co. "'. FIRE
(Oircuit Oourt.:li; D. IllinoiS. 'J u1y 25, 1887.) . ,;
. A policy of insurance contained a clause that if the risk :was increased with of insured, ,and without notice to the. company, tp,e policy sht)uld be void. A mllonu!acturing company stopped WOlik for a few days, cot· ton 1)elng' high, and repaired its machinery meantime, whereby no usecou1d be made, of a stellJUcpumpand hose connected with the engine, in case of fire. The policy for repairs.. that there was no increase . of risk b:y thIS temporary stoppage; follOWIng ltfanuj"u 00. v. Read· '''trwI':ll'ir' T1IAJ. (Jp... antl. 2 3 2 . ' ,,'