
    [No. 21603.
    Department Two.
    April 18, 1929.]
    Max Ragley et al., Respondents, v. Northwestern National Insurance Company, Appellant.
    
    
      
      Guy E. Kelly and Thomas MacMahon, for appellant.
    
      J. Speed Smith and Henry Elliott, Jr., for respondents.
    
      
       Reported in 276 Pac. 537.
    
   Parker, J.

The plaintiffs, Ragley and Neilsen, seek recovery upon a fire insurance policy issued by the defendant insurance company, insuring their dwelling house, situated in Seattle, against loss or damage by fire in an amount not exceeding one thousand dollars, for a three-year term beginning October 1, 1926; the dwelling house having been damaged by fire on May 14, 1927. Trial upon the merits in the superior court for King county, sitting with a jury, resulted in verdict and judgment awarding to the plaintiffs recovery in the sum of $466.67, as prayed for, from which the defendant has appealed to this court.

Following an appropriate description of the premises by name of street and house number in Seattle, the policy specifies the insurance as follows: “$1,000 on the shingle roof frame building, while occupied only for dwelling house purposes.” Other portions of the policy specify a number of conditions, in part, as follows :

“This policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, . . . if the hazard be increased by any means within the control or knowledge of the insured, ... or if any change other than by the death of an insured, take place in the interests, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or by judgment or by voluntary act of the insured, . . . or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”

We quote these specific conditions as bearing upon the question of whether or not the general words, above quoted, specifying the insurance “while occupied only for dwelling house purposes,” shall be read literally and unqualifiedly.

At the time of the issuance of the policy, and until the damage of the house by fire, Ragley held legal title to the premises. During the same period, the premises were held by Neilsen under contract of sale from Rag-ley, Neilsen being entitled to possession and control of the premises under that contract. The policy was endorsed by appellant recognizing the existence of that contract and making loss, if any, payable to Neilsen and Ragley jointly.

On March 20, 1927, Neilsen rented the premises to one Wilson for dwelling house purposes. Wilson then commenced and continued to use the house exclusively for that purpose, in so far as Ragley or Neilsen was informed or had any cause to believe, until the house was damaged by fire on May 14, 1927. After the fire, proofs of loss were duly presented to appellant, and other insurance companies also liable upon concurrent insurance. An adjuster for the several insurance companies, including appellant, appraised the total fire damage to the house at $2,100, of which it is conceded $466.67 would be an obligation of appellant' owing to Ragley and Neilsen, unless the policy was rendered void and appellant thereby absolved from liability by reason of the use of the premises other than for dwelling house purposes at the time of the fire. Appellant’s sole defense is that, at the time of the fire, the house was used for the unlawful manufacture of intoxicating liquor.

Counsel for appellant requested the trial judge to give to the jury the following instruction:

“You are instructed that, if you find from the evidence that the building covered by the policy of insurance in this action was being used as a place for the manufacture of intoxicating liquor, your verdict in this case must be for the defendant.”

The judge refused this request, but gave to the jury the following instruction:'

“You are instructed that, if you find from the evidence that the building covered by the policy of insurance in this action was being used generally as a place for the manufacture of intoxicating liquor or that one of its principal uses was such manufacture of intoxicating liquor, then your verdict in this case must be for the defendant.”

It is contended that this gave to the jury an erroneous view of the meaning of the words “while occupied only for dwelling house purposes,” used in the policy as descriptive of the insurance. It is argued that, to render the policy void, the proof need go no farther than to show that intoxicating liquor was manufactured in the house at the time of the fire, though not to the extent of such manufacture being one of the principal uses of the house.

It seems to us that this contention is not sound. When we consider the great number of uses which may be made of a house, and things which may be done therein incident to its occupancy as a home, it at once becomes apparent that the words “occupied only for dwelling house purposes” are not capable of very exact meaning or application. We are of the opinion that the trial judge correctly instructed the jury, and correctly refused to give the unqualified instruction requested by counsel for appellant.

This conclusion finds support in the rule adopted by this court, in harmony with the rule generally adhered to by the courts, that uncertainty of application in the meaning of the language of an insurance policy, especially language therein intended to provide for forfeiture of the rights of the insured, is to be construed favorably to the insured. Port Blakely Mill Co. v. Springfield Fire & Marine Ins. Co., 59 Wash. 501, 110 Pac. 36, 140 Am. St. 863, 28 L. R. A. (N. S.) 596; Mountain Timber Co. v. Lumber Ins. Co., 99 Wash. 243, 169 Pac. 591.

It is contended that the evidence is sucb as to call for a disposition of tbe case upon tbe merits in favor of appellant, as a matter of law, and that tbe trial court should have so adjudged in response to appellant’s motion for judgment notwithstanding tbe verdict. There was some rather convincing testimony to tbe effect that Wilson, who was occupying tbe bouse as Neilsen’s tenant, was, at tbe time of tbe fire, manufacturing intoxicating liquor therein; but we think tbe evidence was not sucb as to call for deciding as a matter of law that intoxicating liquor was being manufactured in tbe bouse as one of tbe then principal uses of tbe bouse.

We have this additional fact appearing in tbe evidence, so as to warrant tbe jurors in believing, as they evidently did, that tbe bouse was rented by Neilsen to Wilson for dwelling bouse purposes; that neither Ragley nor Neilsen bad any cause to believe that tbe bouse was going to be used for any other purpose; and that neither of them bad any cause to believe, at any time up to tbe time of tbe occurrence of tbe fire, that tbe bouse was used for any other purpose. Under sucb conditions, neither Ragley nor Neilsen would be chargeable with tbe manufacture of liquor in tbe bouse at tbe time of tbe fire, even though sucb manufacture was sucb as might, as against tbe tenant Wilson, be regarded as one of tbe principal uses of tbe bouse by Wilson. Nebraska & I. Ins. Co. v. Christiensen, 29 Neb. 572, 45 N. W. 924; Obermeyer v. Phoenix Ins. Co. of Hartford, 217 Ky. 590, 290 S.W.500; Colker v. Connecticut Fire Ins. Co., 218 Ky. 124, 290 S. W. 1073. The policy seems plainly to contemplate that the house might be occupied by a tenant. We think the duty of Bagley and Neilsen went no further than that they would not rent the premises to anyone other than for “dwelling house purposes,” and would not knowingly permit its use for any other purpose.

We conclude that appellant is not entitled to a new trial because of error in the instructions; also, that appellant is not entitled do judgment notwithstanding the verdict.

The judgment is affirmed.

Mitchell, C. J., Main, Millard, and French, JJ., concur.  