We are very earnestly pressed to order a reargument of this cause, and reconsider our judgment given at the last term, upon the ground that the vital question was for the jury, and that it was grave error to dispose of it as one of law. The magnitude of the claim and the importance of the question, has induced us to give careful consideration to the application of the plaintiffs.
We do not discover that it is claimed that there is any dispute in respect to all the material facts, but that it was, upon the undisputed facts, for the jury and not the court to say, whether the operations of Sawin Osgood were or were not in violation of the conditions of insurance. We think, as an ordinary rule, it may be safely assumed, that upon an undisputed state of facts, the court in which an action is pending, may render the judgment which the law requires, without the aid or advice of a jury, and that such action by the court does not violate any of the maxims of the law. As much as we venerate and respect the right of trial by jury, we are of opinion that, the judges of the courts, while they may be supposed to have more learning in the law, are still able to comprehend an undisputed state of facts with as much intelligence as any jury that can ordinarily be empanneled.
In this case it was a question whether, the finishing of a lot of disjointed, and unfinished chairs, was to be regarded *Page 261 within the terms of the policy as the storing of a stock of "cabinet-ware." We thought not, and are still of the same opinion. It is a very plain proposition that the storing of a stock of "cabinet-ware" in a finished state, is quite different from the process of its manufacture. In the one case the presence of highly combustible materials is required, and in the other it is not. It happened here that the fire resulted from the presence in the building of dangerous elements, not allowed by the policy. It is suggested and perhaps truly, that the evidence might not in some aspects justify the assumption, that in the prosecution of the business of Sawin Osgood eight or ten men were constantly employed, and that four or five barrels of glue, paint, alcohol, varnish and benzine, were required at one time. Yet the exact number of men employed and the exact quantity of the dangerous commodity used is by no means material to the decision of the case. It is not denied but some was employed, and that is quite as fatal, however insignificant the quantity. We do not find it necessary to attempt to refute the allegation of the counsel for the plaintiffs, that we have held that the presence of four or five barrels of varnish "makes a workshop," or that the presence of ten men produces the same result, as we are not aware that our decision of this case has been placed upon any such ground. We have examined with attention the numerous cases cited by the counsel for the plaintiffs, as to what are questions of fact for the jury, and what are questions of law for the court, and we find nothing that changes our views of the general rule.
There was no motion for a nonsuit, but the court upon the whole case was requested to direct a verdict for the defendant. We are of opinion that this request was in substance and effect, the same thing as a motion for a nonsuit, and we are referred to no case holding a contrary doctrine.
We rested the judgment pronounced at the last term upon the proposition before indicated. If this were not satisfactory we should still be compelled to order a new trial upon the ground that evidence offered by the defendant to show *Page 262 that the occupation of Sawin Osgood increased the risk, was rejected without any satisfactory reason in our view of the case.
The motion for a reargument must be denied, with costs.
All concur.
Motion denied.