Cont'l Ins. Co. of New York City v. Kyle

• Citation: 124 Ind. 132, 24 N.E. 727
• Case Date: May 28, 1890
• Court: Supreme Court of Indiana

124 Ind. 132
24 N.E. 727

Continental Ins. Co. of New York City
v.
Kyle.

Supreme Court of Indiana.

May 28, 1890.

Appeal from circuit court, Vigo county, William Mack, Judge.

H. H. Boudinot and Eggleston & Reed, for appellant. McNutt & McNutt, for appellee.

Berkshire, C. J.

This is an action brought by the appellant to review a judgment obtained by the appellee against the appellant in an action upon an insurance policy issued by the appellant to the appellee, the said judgment having been obtained in the said Vigo circuit court. The complaint rests upon the first branch of section 616, Rev. St. 1881. The court below sustained a demurrer to the complaint, and the appellant elected to abide by the ruling upon the demurrer; and, judgment having been given for the appellee, this appeal is prosecuted. The errors of law stated in the complaint are: (1) The court erred in its conclusions of law upon the facts found, and stated in its special finding. (2) The court erred in overruling the plaintiff's motion to modify said special finding. (3) The court erred in overruling the motion for a new trial.

The first alleged error involves substantially the same questions as the third; and, as the third presents the questions more clearly and satisfactorily, we do not care to consider the first. It does not become necessary to consider the second alleged error; but see Levy v. Chittenden, 120 Ind. 37, 22 N. E. Rep. 92.

The policy sued upon in the original action contained the following conditions: “Or if the assured, without written permission hereon, shall now have, or hereafter make or procure, any other contract of insurance, whether valid or not; or if the above-mentioned building be or become vacant or unoccupied, or be used for any other purpose than is mentioned in said application, without consent indorsed hereon; or if the property shall hereafter become mortgaged or incumbered, or upon the commencement of foreclusure proceedings, or in case any change shall take place in the title or possession (except by succession by reason of the death of the assured) of the property herein named, or if the assured shall not be the sole and unconditional owner in fee of said property; or if the policy shall be assigned, or if the risk shall be increased in any manner, except by the erection of ordinary outbuildings, without consent indorsed hereon,-then in each and every one of the above cases this policy shall be null and void.” The foregoing conditions are such as the parties had a right to place in their contract, and, as they form a part of the contract, the courts cannot disregard them.

[24 N.E. 728]

It is the duty of the courts to recognize and enforce the contracts of parties, when valid and binding, according to the terms and conditions thereof as expressed therein. The portion of the policy which we have above set out is plain and easily understood. Policies of insurance, like all other contracts, are to be construed with reference to the intention of the parties, to be ascertained from the terms and conditions placed therein by the parties. Barton v. Insurance Co., 42 Mo. 156;Straus v. Insurance Co., 94 Mo. 182, 6 S. W. Rep. 698;Ripley v. Insurance Co., 30 N. Y. 136;Wells v. Insurance Co., 44 Cal. 397;Insurance Co. v. Gwathmey, 82 Va. 923, 1 S. E. Rep. 209. With this most important rule as our guide when we read and consider the policy here under consideration, we must reach the conclusion that for a breach of any one of the conditions above named on the part of the assured the insurer was, because thereof, to be absolved from all liability on account of the policy, unless its consent to such breach of condition should be obtained in advance thereof.

There is no contention that the appellant, by indorsement on the policy or otherwise, ever gave its consent that the building insured should become or stand vacant. This leaves but one further question for our consideration: Had the building become vacant before it was burned? If the evidence establishes the affirmative of this proposition beyond controversy, then the court erred in overruling the motion made in the original action for a new trial, and erred in overruling the demurrer to the complaint in the present action. In our opinion the court erred in both of its rulings. The complaint charges that the building was destroyed by fire on the 31st day of October, 1886, and the special finding states that the tenant who had occupied the building moved out on the 26th day of October, 1886, and that the fire occurred on the 31st day of the same mouth. The undisputed evidence is that the tenant moved out on the 26th day of March, 1886, and that the fire occurred on the 31st day of said month. We have concluded to set out the evidence as we find it in the bill of exceptions with reference to the occupancy of the building. The appellee testified: “At the time the building was insured it was occupied by myself, and afterwards by my tenant. She moved out of the house on the 26th day of March, 1886, and took everything out of it. Prior to her removal from the house I had rented it to Crabb and McClentack. After she moved out they made some repairs on the house, and when they finished repairing they left two or three planes in the house. On the 30th or 31st day of March the said Crabb and McClentack hauled some hay, and put it in the stable loft on the premises, and intended to move in on the 1st day of April, 1886. On the night of the 31st day of March, 1886, the house was totally destroyed by fire. At the time it burned, the only articles in it were the planes left there by Crabb and McClentack after they had finished the repairing.” Mrs. Kyle testified: “I am the aunt of the plaintiff. I moved out of the house which was burned down, for the purpose of letting the new renters in, Crabb and McClentack. There was some hay in the stable, and some potatoes buried in the ground near the house by Crabb and McClentack. The house was a frame house. Crabb and McClentack lived about one and a quarter mile from the house.” John Crabb testified: “I and Mr. McClentack, prior to March 26, 1886, rented the house belonging to Mr. Kyle, which was burned down on the 31st day of March, 1886. After we rented it Mrs. Kyle moved out, on the 26th day of March, 1886, and took all of her things out of the house. After she moved out we made some repairs on the house, and intended to move into the house on the 1st day of April, 1886. We had moved some of our things on the premises. I put some hay in the stable loft. After we got done repairing we left a plane or two in the stable. They were the only property we had there at the time the house burned down. No one was living in the house when it burned down. It was unoccupied by any one.” Henry McClentack testified: “I and Mr. Crabb rented the house that was burned down of Mr. Kyle the plaintiff. At the time we rented it his aunt, Margaret Kyle, was living in it. On the 26th day of March, 1886, she moved out, and took all of her things out. After she moved out we made some repairs on the house, and when we finished repairing we left a few planes in said house, on or about the 30th day of March, 1886. We hauled some hay, and put it in the stable loft. At the time the house burned down it was unoccupied by any one. The planes were all the property that was in it. We intended to move in the next day after the fire occurred.”

We have examined the authorities to which counsel for the appellee in their brief call our attention, and other authorities which we have been able to find in the same line, but think they do not support the ruling of the court to which we have called attention. As strong a case as we have been able to find in support of the contention of the appellees is the case of Eddy v. Insurance Co., 70 Iowa, 472, 30 N. W. Rep. 808. The syllabus to that case is as follows: “A tenant moved out of the insured dwelling on Tuesday, and on Wednesday morning the owner, who lived near, took possession of the house, and with his servant began cleaning it; * * * and they were continuously engaged during the working hours of each day in cleaning and moving goods into the house until Friday evening, intending that the family should be fully domiciled there on Saturday, but on Friday night the house was burned. Held, that the house was not vacant.” The facts as stated by the learned judge who delivered the opinion of the court are as follows: “The house had been temporarily occupied by a tenant, who removed therefrom on Tuesday. The fire occurred on the following Friday night. The plaintiff was residing in another house on another part...