Hunt v. State Insurance Company of Des Moines, Iowa

• Decision Date: 22 October 1902
• Parties: LOLA M. HUNT v. STATE INSURANCE COMPANY OF DES MOINES, IOWA
• Court: Nebraska Supreme Court

92 N.W. 921

66 Neb. 125

LOLA M. HUNT v. STATE INSURANCE COMPANY OF DES MOINES, IOWA

Supreme Court of Nebraska

October 22, 1902

REVERSED AND REMANDED.

POUND C. OLDHAM, C., concurs.

OPINION

POUND, C.

The policy sued on in this case contains the following condition "If there is any change in the occupant or occupancy of the premises insured, or if the buildings insured, or either of them, become vacant, * * * this policy shall be void." There is a further proviso that "no officer agent or representative of this company shall be held to have waived any of the terms or conditions of this policy, unless such waiver shall be indorsed hereon in writing." The defendant, relying upon these provisions of the policy, pleads three grounds of forfeiture: That the property was insured as a dwelling-house, occupied and to be occupied by the owner as a residence, and did not continue so to be occupied, but there was a change of occupancy from the owner to a tenant; that the property remained vacant for some ten days at the time of the change of occupancy; and that it was again vacant at the time of the fire. These violations of the conditions of the policy are alleged to have taken place without the consent of the defendant indorsed upon the policy, as required by its terms, and to have rendered it void. At the trial the evidence tended to show that the local recording agent of the defendant had full notice and knowledge of the change of occupants and of the vacancy at the time of such change, long prior to the loss, and that after he had such notice the defendant treated the policy as in force by indorsing a mortgage clause thereon. With respect to the alleged vacancy at the time of the loss, the evidence showed that the tenant in possession of the premises had been ordered to move, and had moved out the day of the loss; the fire occurring at night not many hours thereafter. There was some dispute as to whether the tenant's goods had been entirely removed. The trial court directed a verdict for the defendant upon the ground of the change of occupancy without written consent of the company. It is clear that the instruction directing a verdict can not be sustained upon the ground on which it purports to be based. The policy did not become void when the conditions in question were broken. The breach of the conditions merely afforded ground for forfeiture, at the option of the insurer. Hughes v. Insurance Co. of North America, 40 Neb. 626, 59 N.W. 112; Rochester Loan & Banking Co. v. Liberty Ins. Co., 44 Neb. 537, 62 N.W. 877; Home Fire Ins. Co. v. Kuhlman, 58 Neb. 488, 78 N.W. 936. If the insurer, with knowledge of the facts by reason whereof it is entitled to insist upon forfeiture, continues to recognize the policy as in force, or does any act inconsistent with insistence upon the forfeiture, the forfeiture is waived, and may not be relied upon thereafter. Slobodisky v. Phenix Ins. Co., 52 Neb. 395, 72 N.W. 483; Phenix Ins. Co. v. Holcombe, 57 Neb. 622, 78 N.W. 300; Home Fire Ins. Co. v. Kuhlman, supra. Notice to the local agent, who has authority to issue policies, is in such cases notice to the insurer. Eagle Fire Co. v. Globe Loan & Trust Co., 44 Neb. 380, 62 N.W. 895; Home Fire Ins. Co. v. Bernstein, 55 Neb. 260, 75 N.W. 839. Hence it is manifest that, if plaintiff's evidence is credited, the company itself had waived any forfeiture it might have been entitled to declare by reason of the change of occupants or the vacancy at the time of such change. There is authority for holding that suffering the policy to stand some eleven months after notice of the facts entailing forfeiture, without any attempt to take advantage of them, would of itself amount to waiver. Billings v. German Ins. Co., 34 Neb. 502, 52 N.W. 397; Slobodisky v. Phenix Ins. Co., 52 Neb. 395, 72 N.W. 483; Phenix Ins. Co. v. Holcombe, 57 Neb. 622, 78 N.W. 300; ...