Hartford Fire Ins. Co. v. Smith

• Decision Date: 01 October 1877
• Citation: 3 Colo. 422
• Parties: HARTFORD FIRE INS. CO. v. SMITH et al.
• Court: Colorado Supreme Court

3 Colo. 422

HARTFORD FIRE INS. CO. v. SMITH et al.

Supreme Court of Colorado

October, 1877

Error to Probate Court of Arapahoe County.

THIS was an action of assumpsit brought by Smith and another, the defendants in error, against the plaintiff in error, upon a policy of insurance against loss by fire. The jury rendered a verdict in favor of the plaintiffs below, and judgment was entered on the verdict. The fact are sufficiently stated in the opinion.

Messrs SAYRE, WRIGHT & BUTLER, for plaintiff in error.

Mr. C S. THOMAS, and Mr. T. M. PATTERSON, for defendants in error.

THATCHER C. J.

By the terms of the policy the assured were required, in case of loss, to give immediate notice thereof to the company. On the day after the fire, Kassler & Patterson, local agents of the company, whose duty it was, in the event of loss, to notify their principal, wrote a letter to G. F. Bissell, general agent of the company at Chicago, apprising him of the loss. On the same day, and after the letter was written, the assured notified Kassler & Patterson of the loss, and were informed by them that it was already known to them, and that they hd signified the same by letter to the company. Was this notice of loss given to the local agents sufficient? It has been held that where the policy requires the notice to be given to a particular officer or agent of the company, that notice to any other officer or agent than the one designated would not be a substantial compliance with the provisions of the policy, and that it would, therefore, be insufficient. But the policy under consideration contains no such restrictions. The assured are, therefore, free to give the company notice in any manner they choose. The only requirement is that the company be apprised of the loss immediately after it occurred. The notice given to the agents must, under a proper construction of the assured's contract, be held to be a notice to the company. Killips v. The Putnam Fire Insurance Co., 28 Wis. 480.

The fact that the occupancy of the building insured was changed after the issuance of the policy is not deemed to be material. The statement in the policy that the insured building was 'occupied by the tenant for a boarding-house,' was but an affirmation of its then existing condition, not promissory in its character.

It is not to be regarded as a a warranty that the building would continue to be occupied in the same way. If a continuing warranty had been intended, it is to be supposed it would have been expressed in more apt language. Where appropriate words are employed, descriptive of the present use of insured premises, courts will not construe them into a promissory stipulation that the use of the premises shall remain unchanged, unless the intention of the parties to that effect is clearly manifest. Blood v. Howard Fire Ins. Co., 12 Cush. 472; Smith v. Mechanics & Traders' Ins. Co., 32 N.Y. 399; Hough v. City Fire Ins. Co., 29 Conn. 10.

It is provided in the policy that 'if the premises hereby insured shall become vacant or unoccupied * * * this policy shall be void.' Were the premises vacant or unoccupied within the meaning of the policy at the time of the fire? The building was no longer used as a boarding-house, but as we have seen, the insured were under no obligation to continue its use for that purpose. When the boarding-house tenant vacated the building, Mr. Feely at once occupied it, and continued its occupation until it was burned down. He was engaged in repairing the building, and slept therein every night. One of the rooms was furnished, and used by him as a sleeping apartment. The fact that he took his meals elsewhere does not, in our opinion, operate to defeat the policy. We do not think that the company, by requiring that the building should be occupied, stipulated for a higher degree of care and watchfulness than the occupancy by Mr. Feely implies. While we shall endeavor to guard the rights of insurance companies by a fair and reasonable construction of their contracts, we cannot consent to see frittered away the rights of the insured by an illiberal and unjust interpretation of a policy designed for their (the insured's) protection. We are of opinion that the building did not become vacant or unoccupied within the meaning of the policy. In this view one of the objections of the general manager to the preliminary proof, viz: that the insured failed to set forth the occupancy of the building, is not valid. The statement 'that the building insured and destroyed was occupied by Patrick Feely as a lodging-house' is sufficient.

As a precedent condition to the right of the assured to recover from the company, a particular account of the loss in the nature of preliminary proofs is required. The character of this particular account is determined by the policy. Among other things the assured are required in their preliminary proofs to furnish a copy of all policies covering the insured premises, in which respect they failed. That there must be a substantial compliance with the terms of the policy in furnishing the preliminary proofs before the assured are entitled to any indemnity in case of loss, the authorities are agreed, unless the company waive the defects in the proofs, or waive the proofs altogether, by putting the refusal to pay on other grounds. Blake v. Exchange Mutual Ins. Co., 12 Gray, 270; Franklin Fire Ins. Co. v Coats & Glenn, 14 Md. 293; ...