Home Ins. Co. v. Currie

• Decision Date: 15 December 1931
• Docket Number: No. 6132.,6132.
• Citation: 54 F.2d 203
• Parties: HOME INS. CO. v. CURRIE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

54 F.2d 203 (1931)

HOME INS. CO. v. CURRIE et al.

No. 6132.

Circuit Court of Appeals, Fifth Circuit.

December 15, 1931.

Pinkney Grissom, of Dallas, Tex., for appellant.

B. Frank Haag and Frank Stubbeman, both of Midland, Tex., for appellees.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

Henry Currie sued the Home Insurance Company of New York and recovered judgment for $2,000 under one fire insurance policy on his house in Texas, and $500 under another concurrent policy on the house, and $1,500 on the household furniture therein. The judgment awarded $1,548.18 of the first item of insurance on the house to Abilene Building & Loan Association, which, pursuant to Texas practice, had been allowed to intervene to set up its rights as mortgagee under a mortgage clause attached to that policy. The insurance company appeals.

The defenses asserted by pleading and evidence were that no sworn proofs of loss had been rendered as required by the policies; that the insurance on the house covered only while it should be occupied by the owner and not otherwise as a dwelling, whereas it was occupied by two tenants only at the time of the fire; and as to the personal property the policy was voided by its terms because the hazard had been increased by a means within the control and knowledge of the insured when tenants were substituted as occupants for the owner. The insured admitted that no formal proof of loss was made within ninety-one days from the fire, as required by the policies. In defense of the failure it was pleaded and proven that notice of the loss was promptly given to the local agent of the insured, who wrote the home office, and it replied, stating that the matter had been referred to a named adjuster for attention, and requesting the local agent to assist him. The adjuster wrote the local agent, making an appointment for the adjustment, and requested him to cause the assured to secure a detailed and itemized estimate on the building and a like schedule of the household goods. Authority is thus shown both in the adjuster and the local agent to act for the insured. The agent accordingly requested these papers of the insured and his wife. The latter, acting for her husband, prepared an itemized schedule of the household goods with values, and had a contractor make an estimate for replacing the building. The adjuster and local agent on the day appointed interviewed the wife about the loss. She furnished to them the requested papers, which were retained without objection, and no further proof was ever asked for. The insured and his wife believed that nothing further was wanted. This all occurred within two months after the fire. On these facts a finding was authorized that the formal proof of loss within ninety-one days of the fire had been waived. Concordia Ins. Co. v. School District, 282 U. S. 545, 51 S. Ct. 275, 75 L. Ed. 528. The nonwaiver agreement, made one hundred and twenty-five days after the fire, expressly preserved all the then rights of both parties, and stipulated only that future action or requests by the insurer should not waive any requirement of the policy. It had no effect upon the waiver already accomplished. The stipulation of the policy against waivers otherwise than by a written indorsement on the policy does not apply to waivers after loss. Concordia Ins. Co. v. School District, supra.

But as to Currie the insurance on the house was shown to be not recoverable. By a special stipulation written on or attached as a rider to the printed policy the insurance in this item of both policies was defined as on a described frame building "while occupied by owner and not otherwise as a dwelling." The policy on its face gives an analysis of the rate charged, which indicates that an additional charge which had not been included would have been added for tenant occupancy. This is confirmed by the local agent's testimony that 15 cents per hundred dollars of insurance would have been the additional charge. The quoted words have the effect of a continuing warranty that the owner alone would occupy the house as his dwelling, a breach of which would terminate the insurance on it. Connecticut Fire Ins. Co. v. Buchanan (C. C. A.) 141 F. 877, 4 L. R. A. (N. S.) 758; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 14 S. Ct. 379, 38 L. Ed. 231. We cannot regard this plain language to be altered by the printed stipulation of the policy form in another place that "This entire policy shall be void unless otherwise provided by agreement endorsed hereon or added hereto * * * if any change other than by the death of the insured take place in the interest, title, or possession of the subject of insurance (except change of occupants without...