Johnson v. Franklin Ins. Co. of Philadelphia, Pa.
| Decision Date | 12 April 1916 |
| Docket Number | 12871. |
| Citation | 156 P. 567,90 Wash. 631 |
| Parties | JOHNSON v. FRANKLIN INS. CO. OF PHILADELPHIA, PA. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.
Action by Matt Johnson against the Franklin Insurance Company of Philadelphia, Pennsylvania. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Ballinger & Hutson, of Seattle, for appellant.
Shepard Burkheimer & Burkheimer, of Seattle, for respondent.
On April 12, 1912, the respondent, being then the owner of certain household goods, insured the same with the appellant company in the sum of $900. The policy issued was in form a New York standard policy, and purported to insure the goods for a term of three years, 'all while contained in the frame building while occupied only as a dwelling, known as dwelling No. 30, at Franklin, King county Washington.' The policy recited that it was made and accepted subject to certain conditions printed on the back thereof, among which was the condition that no privilege or permission affecting the insurance under the policy shall exist or be claimed by the insured unless written or attached thereto. The policy was issued and countersigned by the Sylvester Insurance Agency, a concern of which one W. C Sylvester seems to have been the sole proprietor. Some time after the issuance of the policy, the Sylvester Insurance Agency gave written consent in the name of the company to the removal of the property to a place designated as No. 409, Fifth avenue, Seattle, Wash. Subsequent to the issuance of this permit, the agency ceased to represent the company; due notice of the change being filed in the office of the state insurance commissioner on November 13, 1913. On April 5, 1914, the respondent addressed a letter to the Sylvester Agency asking for a permit to remove the goods to No. 2832, Portland street, in the city of Seattle. Some nine days later, he wrote that he had misnamed the street to which he desired to remove, and that the correct name was Holden street. No reply was made by the Sylvester Agency to either of these letters, nor does it appear that they were forwarded to the insurance company. On April 24, 1914, ten days after the last of the letters mentioned was written, the property was destroyed by fire at No. 2832 Holden street, in the city of Seattle; the respondent having removed the goods to that place on April 6, 1914, the day following the writing of the first letter. After the fire, the respondent notified the Sylvester Agency of the fact, who in turn forwarded to the insurance company a copy of the notice, together with copies of the letters previously written by the respondent relating to the removal permit, which was the first notice the company had of any of the matters. Due proofs of loss were made by the insured, and payment demanded of the company. Payment was refused, and this action was instituted upon the policy. At the trial, which was being had before the court sitting with a jury, the respondent at the conclusion of the evidence moved for judgment in his favor. This motion the trial court granted, discharging the jury and entering judgment in favor of the insured for the amount named in the policy. From this judgment, the insurance company appeals.
But two questions are suggested by the record: First, did the policy as written cover the property at the place to which they were removed; and, second, is the insurance company estopped by its acts from asserting that it did not cover them?
The first question we think must be answered in the negative. An insurance company has the right to determine for itself what property it will insure and at what place it will insure it and to provide that the policy shall become void if the property is removed from the designated place without its consent. This policy provides in unmistakable terms that the property described thereon is insured only while at the designated location unless otherwise provided by agreement indorsed thereon, and clearly such a condition is of the essence of the contract, and the court cannot hold that it covers the property elsewhere without making a new contract for the parties. Such is the effect of our holdings in the cases of Henschel v. Oregon Fire, etc., Ins. Co., 4 Wash. 476, 30 P. 735, 31 P. 332, 765; Jump v. North...
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...the coverage, the estoppel principle does not apply, and recovery may not be had without reformation of the policy. Johnson v. Franklin Ins. Co., 90 Wash. 631, 156 P. 567; Reynolds v. Pacific Marine Ins. Co., 98 Wash. 362, 167 P. 745, L.R.A.1918B, 427; Id., 105 Wash. 666, 178 P. 811; Charad......
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