Hotchkiss v. Home Ins. Co. of N.Y.

• Decision Date: 23 October 1883
• Citation: 17 N.W. 138,58 Wis. 297
• Parties: HOTCHKISS v. HOME INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

58 Wis. 297

17 N.W. 138

HOTCHKISS

v.HOME INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

Filed October 23, 1883.

Appeal from circuit court, Trempealeau county.

E. C. Higbee, for appellant, Hattie A. Hotchkiss.

Cameron, Losey, & Bunn, for respondent, the Home Ins. Co. of New York.

ORTON, J.

The condition of the policy of insurance is that “if the above-mentioned premises shall become vacant or unoccupied, and so remain, with the knowledge of the assured, without notice to and consent of this company indorsed thereon, this policy shall be void.” This condition applies as well to the non-occupancy of the property when the policy was renewed, as to its being or becoming unoccupied thereafter. Devine v. Home Ins. Co. 32 Wis. 471. The evidence was that the agent of the assured informed the agent of the company, at the time of the renewal of the policy, that the premises were unoccupied, but that they would be occupied in two or three weeks. The agent of the company said, in effect, that the policy would be of no effect unless the premises were occupied when burned. This was a waiver of the condition on the part of the company so far as the premises were unoccupied at the time the policy was renewed. Devine v. Ins. Co., supra.

It is claimed by the learned counsel of the appellant (1) that this constituted a waiver of the condition of non-occupancy at the time the policy was renewed; and (2) that so far as the future occupancy was concerned, it was a contemporaneous verbal or oral agreement, which could not affect the terms of the written policy.

The waiver of the non-occupancy at the time the policy was renewed was by parol, and in the nature of an estoppel in pais, and directly in conflict with the terms of the policy, and yet it may prevail. Then why may not the condition of the waiver--which is an essential part of it, and gives it character and effect--rest in parol also? In the above case of Devine v. Ins. Co. it was in evidence on the part of the company that in addition to the waiver of the condition of occupancy of the premises at the time of the issuing of the policy, by reason of the agent's knowledge that it was unoccupied at the time, and as a part of such waiver, the assured agreed or promised that they should be occupied within 30 days thereafter. This was denied by the plaintiff. The circuit court instructed the jury, in effect, that if such was the representation of the plaintiff, and the building was so unoccupied, and so...