Continental Insurance Company of New York City v. Kyle

• Decision Date: 28 May 1890
• Docket Number: 14,259
• Citation: Continental Insurance Company of New York City v. Kyle, 24 N.E. 727, 124 Ind. 132 (Ind. 1890)
• Parties: The Continental Insurance Company of New York City v. Kyle
• Court: Indiana Supreme Court

24 N.E. 727

124 Ind. 132

The Continental Insurance Company of New York City v. Kyle

No. 14,259

Supreme Court of Indiana

May 28, 1890

From the Vigo Circuit Court.

The judgment is reversed, with costs, with direction to overrule the demurrer to the complaint, and proceed in accordance with this opinion.

H. H Boudinot, W. Eggleston and E. Reed, for appellant.

C. F McNutt, J. G. McNutt and F. A. McNutt, for appellee.

OPINION

Berkshire, C. J.

This was 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, R. S 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:

1st. The court erred in its conclusions of law upon the facts found and stated in its special finding.

2d. The court erred in overruling the plaintiff's motion to modify said special finding.

3d. 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. 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 buildings be or become vacant or unoccupied, or be used for any other purpose than is mentioned in said application without consent endorsed hereon, or if the property shall hereafter become mortgaged or encumbered, or upon the commencement of foreclosure 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 poliey shall be assigned, or if the risk shall be increased in any manner, except by the erection of ordinary out-buildings, without consent endorsed 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 have a right to place in their contract, and as they form a part of the contract the courts can not disregard them. 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. Barton v. Home Ins. Co., 42 Mo. 156 (97 Am. Dec. 329); Straus v. Imperial Fire Ins. Co., 94 Mo. 182 (4 Am. St. Rep. 368, 6 S.W. 698); Ripley v. AEtna Ins. Co., 30 N.Y. 136 (86 Am. Dec. 362; Wells, Fargo & Co., v. Pacific Ins. Co., 44 Cal. 397; Home Ins. Co. v. Gwathmey, 82 Va. 923, 1 S.E. 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 endorsement 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 month.

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 aunt. 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 McClintock. 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 of March the said Crabb and McClintock 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 McClintock 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 McClintock. There was some hay in the stable and some potatoes buried in the ground near the house by Crabb and McClintock. The house was a frame house. Crabb and McClintock lived about one and a quarter miles from the house."

John Crabb testified: "I and Mr. McClintock, prior to March 26th, 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 McClintock 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 rulings 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 appellee is the case of Eddy v. Hawkeye Ins. Co., 70 Iowa 472, 30 N.W. 808. The syllabus to that case is as follows:

"A tenant moved out of an insured dwelling on Tuesday, and on Wednesday morning the owner took possession, and, with his servants, 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 of the farm; and on the next morning after the tenant moved out of the house which was burned, the plaintiff took possession of it, and his employees cleaned the house and prepared to move in. They were constantly engaged every day in cleaning the house, and in moving in household goods until Friday evening. By that time there were carpets and bedding, and bedsteads, cans of fruit, chairs, pictures, mirror and a stove, and clothing, a table, and dishes, in the house, and the family were expecting to be there to remain, on Saturday. The farm stock was there, and the plaintiff, or his employees, were in and about the house every day from six o'clock in the morning until seven or eight o'clock in the evening. The preparation for occupying the house was continuous during all the working hours of each day." The court could very well hold, as it did from these facts, that the building was not vacant when burned.

But we...