Home Fire Ins. Co. v. Kuhlman

• Decision Date: 19 April 1899
• Citation: 78 N.W. 936,58 Neb. 488
• Parties: HOME FIRE INS. CO. v. KUHLMAN.
• Court: Nebraska Supreme Court

58 Neb. 488

78 N.W. 936

HOME FIRE INS. CO.

v.KUHLMAN.

Supreme Court of Nebraska.

April 19, 1899.

Syllabus by the Court.

1. A policy of fire insurance providing that it shall be null “if the building be or become vacant or unoccupied, and so remain for ten days,” does not, upon a violation of such condition, become absolutely void, unless the insurer chooses to take advantage of the forfeiture.

2. An insurance company, upon being informed that there has been a breach of a condition in its policy providing for a forfeiture, may decline to take advantage of such forfeiture, and in that event the contract would remain in force.

3. A waiver, to be effective in defeating a forfeiture, need not rest on either a new agreement or an estoppel; and, when once made, it is irrevocable.

4. An agent of a corporation, acting within the scope of his authority, may, by his declaration or conduct, waive his principal's right to take advantage of a forfeiture.

5. An inference of waiver may be drawn from any declaration or conduct of the insurer which fairly indicates that it has, with full knowledge of the facts, freely chosen to treat the policy, and deal with it, as a valid and subsisting contract.

6. When an insurer has taken advantage of a forfeiture, and has elected to treat the policy as void, the contract is at an end, and cannot be revived, except by mutual consent of the contracting parties.

7. When an insurer has elected to treat a policy of insurance as void for breach of condition providing for a forfeiture, the assured has no claim upon the company for any unearned premium.

8. It is not error to reject proffered evidence which has no material bearing upon the facts in dispute.

9. A judgment based upon a verdict which is supported by sufficient competent evidence will not be disturbed on the ground that the apparent preponderance of the evidence is on the side of the losing party.

Error to district court, Douglas county; Scott, Judge.

Action by Elizabeth Kuhlman against the Home Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.Greene & Breckenridge, for plaintiff in error.

Lee S. Estelle, for defendant in error.

SULLIVAN, J.

In the district court for Douglas county Elizabeth Kuhlman recovered a judgment against the Home Fire Insurance Company in an action on a policy of fire insurance covering a two-story frame building located in the city of Omaha. The policy provided that it should be null “if the building be or become vacant or unoccupied, and so remain for ten days.” The building did become vacant, and so remained for more than 30 days before April 11, 1893, the date of the fire by which it was damaged. The company insists that the judgment against it should be reversed, because the policy had been forfeited, and was not in force when the fire occurred. While conceding that there had been a breach of the condition against nonoccupancy, counsel for plaintiff contends that the right to declare a forfeiture had not been exercised, but had been voluntarily relinquished by the defendant, acting through Mr. Charles J. Barber, its secretary and general manager. This defense was properly pleaded, and the evidence justified its submission to the jury. Under our decisions, the fact of vacancy did not per se annul the contract, but merely gave to the company the right to treat it as void. Hughes v. Insurance Co., 40 Neb. 626, 59 N. W. 112;Eagle Fire Co. of New York v. Globe Loan & Trust Co., 44 Neb. 380, 62 N. W. 895;Slobodisky v. Insurance Co., 52 Neb. 395, 72 N. W. 483. The defendant, on being informed that the insured property had been vacant for more than 10 days might decline to take advantage of the forfeiture, and in that event the policy would remain in force. The election to waive being once made, it would be irrevocable; it could not be recalled. Insurance Co. v. Baker, 153 Ill. 240, 38 N. E. 627. The contention that a waiver must have the elements of an estoppel in cases of this kind cannot be sustained. “It is,” says Sutherland, J., in People v. President, etc., of Manhattan Co., 9 Wend. 381, “a technical doctrine, introduced and applied by courts for the purpose of defeating forfeitures.” In Titus v. Insurance Co., 81 N. Y. 410, it was held that an effective waiver need not be based on either a new agreement or an estoppel. Substantially the same holding was made in Hollis v. Insurance Co., 65 Iowa, 454, 21 N. W. 774; and such is now the settled doctrine of this court. Billings v. Insurance Co., 34 Neb. 502, 52 N. W. 397; Eagle Fire Co. of New York v. Globe Loan & Trust Co., supra. The material inquiry, then, upon this branch of the case, is whether the defendant elected to exercise or to waive its right to take advantage of the forfeiture. The intention of the agent was, of course, the intention of the corporate principal; the decision of Mr. Barber was the decision of the company. Did he, upon being advised of the broken condition, determine to treat the policy as being without force or vitality from the time of the breach, or did he purposely forego this privilege? The fire occurred on April 11th, and on or before April 13th the company was informed of the fact, and caused an estimate of the loss to be made. To the plaintiff, who resided in San Francisco, the following letter was sent on the day of its date: “Omaha, April 13, 1893. Mrs. Elizabeth Kuhlman, No. 875 Mission Street, San Francisco, Cal.--Dear Madam: We herewith inclose bank draft for $3.90, being in full of return premium under policy No. 65,008, issued by the Home Fire Insurance Company to you on May 23d last, for $1,000 on building located at No. 920 Douglas street, Omaha, Nebraska, said policy being this day canceled on our books, and our liability terminated thereunder from and after this date. We have this day tendered Mr. W. E. Rhodes, your agent at the U. S. National Bank, this city, $3.90 cash, in cancellation of said policy. Our object in canceling this policy is that it has just come to our notice that the city authorities some time since condemned and ordered said building to be torn down. We also are just in receipt of information that the building has been vacant for some time. Please sign and return the inclosed receipt, and oblige. Yours, truly, Chas. J. Barber, Sec'y.” This letter was certainly competent evidence of a waiver, and the trial court did not err in so informing the jury. It shows action on the part of the company altogether...