Kyte v. Commercial Union Assur. Co.
| Decision Date | 24 February 1887 |
| Citation | 10 N.E. 518,144 Mass. 43 |
| Parties | KYTE v. COMMERCIAL UNION ASSURANCE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Powers & Powers, for defendant.
The conveyance by deed of this estate by the plaintiff, Lawrence Kyte, and his wife, Joanna Kyte, was a sale within the meaning of the clause in the policy providing that "this policy shall be void *** if without such assent [the written or printed assent of the company] said property shall be sold." Mulville v. Adams, 19 F. 887, 892; Langdon v. Minnesota Mut. Fire Ins. Co., 22 Minn 193; Farmers' Ins. Co. v. Archer, 36 Ohio St 608; Savage v. Howard Ins. Co., 52 N.Y. 502; Baldwin v. Phoenix Ins. Co., 60 N.H. 164; Foote v. Hartford Fire Ins. Co., 119 Mass. 259; Dailey v Westchester Fire Ins. Co., 131 Mass. 173; Oakes v. Manufacturers' F. & M. Ins. Co., Id. 164.
At the date of this conveyance to John P. Kyte, the plaintiff's sole interest in the property was that of tenant by the curtesy. His title, derived from deeds by two of the heirs, Bridget Sweeney and Daly, had been barred by the tax deed given to William Nutt, since more than two years had elapsed without redemption from the sale for taxes. Pub.St. c. 12, § 49. And the plaintiff's payment of the consideration to Nutt did not raise even a resulting trust in favor of himself. Edgerly v. Edgerly, 112 Mass. 175; Cormerais v. Wesselhoeft, 114 Mass. 550. Thus the deed of July 27, 1881, conveyed the plaintiff's entire interest to John P. Kyte.
Neither the insurance company nor its local agent assented to, or had knowledge of, this conveyance, and the instruction to the jury that they might consider its purpose was erroneous. It was competent for the parties to contract that a sale without assent of the company should avoid the policy. The sole question for the jury upon this point was one of fact, and not of purpose. The local agent, Blaney, had no authority to waive that condition in the policy which required the written or printed assent of the company to any change of circumstances or situation increasing the risk.
It would seem to be the law in this commonwealth that, where an insurance policy provides the manner in which its terms and conditions shall be waived, it is to be regarded as a reasonable limitation, and only the manner prescribed will be effectual. And this rule of law is not limited to Massachusetts. Worcester Bank v. Hartford Fire Ins. Co., 11 Cush. 265, 268; Hale v. Mechanics' Mut. Fire Ins. Co., 6 Gray, 169; Baxter v. Chelsea Mut. Fire Ins. Co., 1 Allen, 294; Lee v. Howard Fire Ins. Co., 3 Gray, 583; Mulrey v. Shawmut, etc., Ins. Co., 4 Allen, 116; Carpenter v. Providence & Washington Ins. Co., 16 Pet. 495, 512; Walsh v. Hartford Fire Ins. Co., 73 N.Y. 5, 10; Sandford v. Handy, 23 Wend. 260.
And, in those cases where the strictness of this rule has been somewhat relaxed, a local or even a general agent cannot waive a condition in the policy requiring the written or printed assent of the company, unless it is shown that he had the express authority of the company, or that the company has so ratified similar acts of the agent as to justify the insured in believing that the agent possesses this authority. Walsh v. Hartford Fire Ins. Co., 73 N.Y. 5, 10; Van Allen v. Farmers' Joint-stock Ins. Co., 64 N.Y. 469; Bush v. Westchester Fire Ins. Co., 63 N.Y. 531; Lohnes v. Insurance Co. of North America, 121 Mass. 439; Clevenger v. Mutual Life Ins. Co., 2 Dak. 114, 3 N.W. 313; Harrison v. City Fire Ins. Co., 9 Allen, 231; Stringham v. St. Nicholas Ins. Co., 4 Abb.App.Dec. 315; Mentz v. Lancaster Fire Ins. Co., 79 Pa.St. 475; Catoir v. American, etc., Co., 33 N.J.Law, 487; Shuggart v. Lycoming Fire Ins. Co., 55 Cal. 408; Merserau v. Phoenix, etc., Ins. Co., 66 N.Y. 274; Willcuts v. Northwestern Mut. Life Ins. Co., 81 Ind. 300, 309; Knickerbocker, etc., Ins. Co. v. Norton, 96 U.S. 234; Lynn v. Burgoyne, 13 B.Mon. 400; Tate v. Citizens' Mut. Fire Ins. Co., 13 Gray, 79; Insurance Co. v. McLanathan, 11 Kan. 533.
Since the policy contained this restriction upon the power of the agent, which was well known to the plaintiff, the burden of proof was upon him to show that the local agent, Blaney, had authority to waive this clause by oral agreement. Such authority could not be presumed as a matter of law. 2 Wood, Fire Ins. § 423.
R.D. Smith and C.Q. Tirrell, for plaintiff.
The action being brought by Lawrence Kyte for his own benefit, and for the benefit of the mortgagee, and it being admitted that the policy was properly made payable to the mortgagee, and this duly assented to by the defendant, changes in occupancy would not affect said mortgagee's interest, and, as to his claim, no defense appears in the bill of exceptions. Pub.St. c. 119, § 139.
A sale by one partner to his copartner, and a mortgage back of the seller's share of the partnership property, is not a breach of the condition of the policy relative to a sale without the written assent of the insurer. Powers v. Guardian Fire & Life Ins. Co., 136 Mass. 108. Even expenditures on another man's house give an insurable interest. Looney v. Looney, 116 Mass. 286. Insurance on a building or leased land, as the property of the insured, has been declared good. Fowle v. Springfield Ins. Co., 122 Mass. 191. See Walsh v. Fire Ass'n of Philadelphia, 127 Mass. 383. An insurable interest may exist without any legal title in the property. Williams v. Roger Williams Ins. Co., 107 Mass. 377; Carter v. Humboldt Ins. Co., 12 Iowa, 287; Insurance Co. v. Stinson, 103 U.S. 25. A husband may insure as his own property in which he is tenant by the curtesy, and he has a right to the amount of the insurance in case of loss. Insurance Co. v. Drake, 2 B.Mon. 47; Harris v. York Ins. Co., 50 Pa.St. 341.
The instruction requested, relative to the illegal keeping or sale of intoxicating liquors, was rightly refused. First, because it was too broad; an illegal keeping or sale of intoxicating liquors on one occasion only, under the ruling requested, would render the policy void. But a temporary illegal use of property does not prevent a policy from reviving after such use has ceased. Hinckley v. Germania Fire Ins. Co., 140 Mass. 38, 1 N.E. 737; Rafferty v. New Brunswick Ins. Co., 18 N.J.Law, 480.
The authority of a local insurance agent was not in controversy. It was immaterial whether the agent had or had not authority to waive the terms and conditions of a policy, unless the jury were instructed that such waiver would authorize the use of the premises as claimed by the defendant. The instructions were properly refused (1) because they were not an issue in the case; (2) because they were immaterial; (3) because the defendant was not prejudiced by the refusal. No exceptions to immaterial evidence is allowable. Williams v. Taunton, 125 Mass. 34. It must be shown, not only that the judge erred, but that the error was prejudicial to the party who takes the exceptions. Fuller v. Ruby, 10 Gray, 288. Nor can exceptions to immaterial evidence be sustained, unless it is shown that the defendant is in some way prejudiced thereby. Warner v. Jones, 140 Mass. 216-218, 5 N.E. 645; Wing v. Chesterfield, 116 Mass. 353. The instructions were not required by the circumstances under which the case was presented to the jury, and were not pertinent to the issue. Wilson v. Lawrence, 139 Mass. 320, 1 N.E. 278; Chandler v. Jamaica Pond Aq. Co., 125 Mass. 544.
OPINION
There does not appear to have been any misrepresentation of his title by Kyte when he received his policy. Whatever may have been the effect of the sale of the land for taxes, he was certainly tenant by the curtesy, and this was sufficient to give him an insurable interest. Williams v. Roger Williams Ins. Co., 107 Mass. 377; Harris v. York Ins. Co., 50 Pa.St. 341.
The instruction of the presiding judge that if the purpose of the conveyance by his wife, Joanna, in which he joined as tenant by the curtesy, was to vest the entire interest in the plaintiff, it was not a violation of the terms of the policy, had reference to the transaction as it had been described. The evidence showed this to have been a transfer of a tax title interest by Joanna, the wife of the plaintiff, through a third party, to him. The seizin of this third party, John P. Kyte, was instantaneous only, and he was merely a conduit through whom the full title was to be passed to Lawrence. To hold the conveyance by Joanna Kyte, Lawrence assenting to and joining in it, as a sale within the clauses of the policy which avoid it, if without the written or printed assent of the company the "property shall be sold," would be to construe it too strictly, and to attribute to it a meaning which it was not intended to bear. The plaintiff would be therefore entitled to recover upon the second count, which was upon the policy on the barn, if the verdict was not for an entire sum, as there is no suggestion that this was vitiated, unless by the conveyance referred to.
In regard to the policy upon the house another question is presented. The defendant had offered evidence that the premises were used by the plaintiff during the time covered by the policy for the illegal sale of intoxicating liquors and requested a ruling that, if this was the case, the...
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