141 F. 877 (8th Cir. 1905), 2,193, Connecticut Fire Ins. Co. v. Buchanan

Docket Nº:2,193, 2,194.
Citation:141 F. 877
Party Name:CONNECTICUT FIRE INS. CO. v. BUCHANAN. NATIONAL FIRE INS. CO. v. SAME.
Case Date:September 27, 1905
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 877

141 F. 877 (8th Cir. 1905)

CONNECTICUT FIRE INS. CO.

v.

BUCHANAN.

NATIONAL FIRE INS. CO.

v.

SAME.

Nos. 2,193, 2,194.

United States Court of Appeals, Eighth Circuit.

September 27, 1905

(Syllabus by the Court.)

One of the policies in suit insured a building as a 'normal school and dwelling,' and the other insured it 'occupied and only while occupied as a normal school and dwelling. ' Both declared: 'If the occupants should be changed, except change of occupants without increase of hazard, or if the use be changed, * * * it shall be held to be an election on the part of the insured to cancel said policy, and the said policy shall stand canceled. ' And also: 'This entire policy * * * shall be void * * * if the building, * * * whether intended for occupancy by owner or tenant, be or become vacant or unoccupied. ' Held, these provisions are consistent, certain, and unambiguous; the difference in the two policies is one of words, not of meaning or legal effect; and both plainly contemplate use and occupancy of the building as a normal school and dwelling, and make the same a condition to the acceptance and continuance of the risk.

At the time of the loss the building was used for the temporary storage of the library and a portion of the household effects of a teacher formerly living therein. Its use for school purposes had been suspended for an indefinite period, not in the sense of an ordinary recess or vacation, but in the sense of an absolute suspension of the school by those who had been conducting it. A lease contemplating the establishment of another school of the same character had been negotiated, but the tenant had not arrived or taken possession. No one was living in the building, and it was not the abode of any one who was only temporarily absent. Held, that the condition respecting the use and occupancy of the building was broken, and that there was no liability under the policies for the loss.

In the absence of fraud or mutual mistake, no representation promise, or agreement made, or opinion expressed, in the previous parol negotiations, as to the terms or legal effect of the resulting written contract, can be permitted to prevail, either in law or in equity, over the plain provisions and proper interpretation of the contract.

The theory that proof of prior and contemporaneous negotiations and representations, though not admissible to vary the terms or legal effect of the written contract, may be received for the purpose of raising an estoppel in pais, is a mere evasion of the salutary rule which protects written contracts from impeachment by loose collateral evidence, and upon principle and authority is not tenable.

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These cases are so nearly alike that they may be considered together. In separate actions at law upon two policies of fire insurance, one issued by the National Fire Insurance Company, of Hartford, Conn., and the other by the Connecticut Fire Insurance Company, of the same place, E. M. Buchanan, the insured, recovered verdicts and judgments against the insurers. The actions related to the same loss by fire and were consolidated for purposes of trial. The policies covered the same building at Humeston, Iowa, were issued by the same local recording agent, bore the same date, April 1, 1903, and were to continue in force one year from that date, unless avoided or terminated as therein provided. The insurance stipulated for in one policy was 'against all direct loss or damage by fire, except as hereinafter provided, * * * on the two and three story frame building * * * occupied, and only while occupied, as a normal school and dwelling house,' and that stipulated for in the other policy was 'against all direct loss or damage by fire, except as hereinafter provided, * * * on two and three story frame normal school and dwelling house. ' It was further stipulated in both policies: 'This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the building herein described, whether intended for occupancy by owner or tenant, be or become vacant or

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unoccupied. It is understood, and the insured by accepting this policy so agrees, unless permission be indorsed hereon, that * * * if the possession be changed, or if the occupants should be changed, except change of occupants without increase of hazard, or if the use be changed, * * * then in every such case it shall be held to be an election on the part of the insured to cancel said policy and the said policy shall stand canceled from the happening of any one of the foregoing events, and the insured shall be entitled to receive, on return of this policy to the company, the unearned premium from date of surrender. It is understood, and the insured by the acceptance of this policy so agrees, that * * * any change of use, or any change of occupancy (except change of tenants without increase of hazard), is in each instance an increase of hazard within the meaning of section 1743, Code of Iowa. This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company, except the manager of this company in Chicago, shall have power to waive, change, or modify any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative, except the manager of this company in Chicago, shall have such power or be deemed or held to have waived, changed, or modified such provision or conditions, and such waiver, if any, shall be written upon or attached hereto, nor shall any privilege nor permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. ' No indorsement upon or written addition to either of the policies was made, at the time of their issuance or afterwards, by either the local recording agent or the manager in Chicago.

The building was destroyed by fire May 20, 1903. The principal defense interposed to the actions upon the policies was that at the time of the fire and for a long time prior thereto the building was not used or occupied as a normal school or as a dwelling, but was vacant and unoccupied, by reason of which the policies were inoperative and void. With their answers the defendants paid into court and tendered to the plaintiff the amount of the premiums paid on the policies, with interest thereon from the date of payment. The plaintiff replied, denying that the building was vacant or unoccupied, and stating that it had been used for normal school purposes to within six months of the fire; that at the time the policies were issued and thence to the time of the fire the household furniture and library of one Heskett was stored in the building; that the recording agent who issued the policies had at the time actual knowledge of how, and the extent to which, the building was used and occupied, and that by reason thereof the defendants were estopped from interposing the defense of vacancy and nonoccupancy, and had waived the stipulations in the policy respecting the use and occupancy of the building. Another matter alleged in an amendment to the reply-- that these stipulations had been orally waived by the agent after the policies were issued-- need not be considered, because there was no evidence to sustain it.

The facts shown by the evidence were these: The building was designed and arranged for use as a normal school and dwelling, and was so used and occupied for several years; the school being conducted during nine months of each year, and one of the teachers, with his family, living in the building throughout the year. The use for normal school purposes ceased in the summer of 1902, and had not been resumed at the time of the fire, May 20, 1903, although a lease contemplating the resumption of that use was negotiated three months before. The tenants had not arrived or taken possession. Heskett, the former resident teacher, with his family, moved out of the building in December, 1902, leaving the library and a portion of their household effects, not required for living purposes in their new abode, stored in some of the rooms. Shortly thereafter one Dotson, with his family, moved into two of the living rooms and resided there until about March 18, 1903, when they went elsewhere. At that time one Sires moved his household effects into some of the rooms, and also put his dog in the building. April 7th, Sires, with his family, set up housekeeping there. May 4th they went elsewhere with their effects,

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including the dog. No one was actually living in the building, nor was it the home or abode of any one who was temporarily absent, either, when the policies were issued, April 1st, or when the fire occurred, May 20th.

Referring to the extent to which he exercised a supervision over his effects. which remained stored in the building until the fire, Heskett testified: 'I visited the building a part of the time twice a day. The visits were to the part designated as the kitchen on the first floor. The period I was there every day was two or three months commencing from the beginning of the winter until the 1st of May, say from the middle of December to the 1st of May. When I went to the room alone, I went for the purpose of getting ground feed for my cow. This was the kitchen on the first floor. There were stored in there some articles of kitchen furniture and the feed that I used for my cow. That was the purpose for which I went there every day. * * * I went to and through the rooms our goods were in two or three times a week. I went there...

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