Bias v. Globe

• Decision Date: 18 November 1919
• Citation: 85 W.Va. 134
• Court: West Virginia Supreme Court
• Parties: B. R. Bias, Trustee, v. Globe & Rutgers Fire Ins. Co.

85 W.Va. 134

B. R. Bias, Trustee,

v.Globe & Rutgers Fire Ins. Co.

Supreme Court of Appeals of West Virginia.

Submitted November 11, 1919.

Decided November 18, 1919.

1. Insurance Forfeiture Provisions; Reasonableness.

A covenant or stipulation in a policy of fire insurance that the entire policy shall be void in case the premises shall become vacant, and so remain longer than a certain period of time, is a reasonable and valid provision, and in case such insured premises are destroyed by fire while vacant, after having so remained for a longer time than allowed by the terms of the policy, the insured, in the absence of a waiver of such condition, will not be entitled to recover the indemnity provided in the policy. (p. 136).

2. Same Conditions; Evidence of Waiver.

The waiver by the insurer of one of the conditions or warranties in a policy of insurance is not evidence that another condition or warranty therein contained is also waived. Ordinarily a condition, stipulation, or warranty contained in a policy of insurance applicable to the subject-matter can only be waived in the manner provided in the policy, or by some act or conduct upon the part of the insurer, after being informed of the facts constituting a breach of the warranty or stipulation, from which it may reasonably be inferred that such insurer intends the policy to remain in force notwithstanding such breach. (p. 136).

3. Same Conditions; Waiver of Conditions Against Vacancy.

When a policy of fire insurance provides that the entire policy shall be void, unless otherwise provided by endorsement thereon or attached thereto, if the interest of the insured shall be other than that of unconditional sole ownership, or if the property shall become vacant and unoccupied, and so remain for a period longer than ten days, an endorsement attached to said policy stating that the interest of the insured is that of fee simple in remainder, after a certain life estate therein mentioned, will not make inapplicable or waive the condition or warranty rendering the policy void in case the premises are vacant at the time of the fire, and had been so vacant for a longer period than that provided in the policy. p. 137).

Error to Circuit Court, Mingo County.

Action by B. B. Bias, trustee, against the Globe & Rutgers Fire Insurance Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Wade H. Bromon and Wiles & Bias, for plaintiff in error.

Goodykoontz & Scherr, and Sexton & Roberts, for defendant in error.

Ritz, Judge:

On August 26, 1916, the defendant issued to the plaintiff a policy of fire insurance covering for one year a house in the city of Williamson, West Virginia, and providing for indemnity in the sum of fifteen hundred dollars. The policy was issued on what is known as the New York Standard Form, and provides that the same shall be void, unless otherwise provided by agreement endorsed thereon or attached thereto, if the interest of the insured be other than unconditional sole ownership, and further that the said policy shall be void if the building described becomes vacant or unoccupied, and so remains for ten days. There are many other stipulations, conditions and warranties contained in the policy, but these are the ones that are particularly involved in this litigation. The plaintiff owned the remainder in the property after the life estate of Sylvania Wol-ford, and for the purpose of showing his real interest in it an endorsement was attached to the policy as follows: "This policy covers the fee simple interest of B. R. Bias, Trustee, in the remainder of the property insured after the life estate of Sylvania Wolford in house and improvements on lot 7, block 13, Williamson, West Virginia." At the time the policy was issued, and at the time of the fire, the life tenant was living. The

house was destroyed by fire on the 19th of May, 1917. It had been vacant and unoccupied from the 23d of April, preceding. It is agreed that neither the insured nor the insurer knew that the premises were vacant during this period. Because of the fact that the house was vacant and unoccupied at the time of the fire, and had been so vacant and unoccupied for more than ten days, the insurer refused to pay the indemnity provided in the policy, and this suit was brought for the purpose of recovering the same.

It is very uniformly held that a condition or stipulation in a policy of fire insurance providing that the same shall be rendered void if the premises insured shall remain vacant and unoccupied for a specific length of time is a reasonable and binding condition, and should such premises be destroyed by fire while vacant and unoccupied, and after the same had so remained for a longer time than that provided in the policy, the insurer will be discharged from paying the indemnity therein provided. Joyce on...