McDowell v. Fireman's Fund Ins. Co.
| Decision Date | 02 November 1922 |
| Docket Number | 358 |
| Citation | 191 N.W. 350,49 N.D. 176 |
| Court | North Dakota Supreme Court |
Action in District Court, Eddy County; Coffey, J.
Defendant has appealed from the judgment and from an order denying judgment non obstante, or, in the alternative for a new trial.
Affirmed.
Affirmed with costs.
Lawrence Murphy & Nilles, and R. F. Rinker, for appellant.
N. J Bothne, for respondent.
Statement.
This is an action upon a policy of fire insurance. Defendant has appealed from a judgment in plaintiff's favor and from an order denying judgment non obstante or, in the alternative, for a new trial. The facts are: Plaintiff owned a half section of land with two separate dwellings thereon. On Jan. 17th, 1918, defendant issued its policy of $ 1,000 for a term of three years upon one of these dwellings. This dwelling was distant about three fourths of a mile from the other, the home dwelling. The former was then occupied by a tenant. Later, it was occupied by plaintiff's son under a contract for a deed dated Nov. 20th, 1918. In January, 1920, this contract was canceled and a quitclaim of the land made by the son to the plaintiff. For a time the premises were then occupied by another tenant and later by a hired man, for a certain period of time. During 1920 until about Christmas the plaintiff used the dwelling in his farming operations for purposes of getting meals and other temporary purposes during his farm operations. One Sexton, who made and signed the insurance policy as defendant's agent, was president of a bank in New Rockford where plaintiff did his business and from whom he secured several policies of fire insurance. In December, 1920, plaintiff executed a real estate mortgage upon the land. He testified that he notified this agent about this loan and mortgage for the express purpose of saving his insurance, and the agent told him that it was all right; that it did not make any difference. Also, that when he made the contract with his son he notified the agent and that he was advised that it did not make any difference as the buildings belonged to plaintiff and it would be all right with the company. That, just before Christmas, when he quit eating there and using this dwelling, on that very day, he told the agent about the vacancy and he was advised that it was all right and would not make any difference. About Jan. 17th, 1921, before the insurance expired, plaintiff discovered that the dwelling had been totally destroyed by fire within a week previous. Defendant denied liability. It alleged in its answer: First, the vacancy and unoccupancy of the dwelling for a period of more than ten days and at the time of the loss; Second, increase of the hazard by encumbrances through mortgage and other liens; and, third, violation of the terms of the policy concerning concealment or misrepresentation of material facts, change of the interest of the insured in the property, and increase of hazard by plaintiff's acts, all contrary to the conditions of the policy. Plaintiff made no reply to these affirmative defenses.
Defendant contends that the evidence establishes vacancy and unoccupancy; that this was a material increase of the hazard; that the mortgage operated as a change of interest and an increase in the hazard; that the contract for a deed constituted change of interest; that it was necessary for the plaintiff to affirmatively plead waiver and that the evidence is insufficient to establish waiver; that the trial court erred in not granting a continuance to secure the agent's testimony.
Decision.
It was defendant's duty to affirmatively plead breach of conditions and stipulations of the policy. Beauchamp v. Retail Merchants Asso. 38 N.D. 483, 496, 165 N.W. 545; Ennis v. Retail Merchants Asso. Mut. F. Ins. Co. 33 N.D. 20, 32, 156 N.W. 234; 26 C. J. 500. Defendant performed this duty. To present a waiver of these alleged breaches of conditions it was unnecessary for the plaintiff to allege the same in a reply. Beauchamp v. Retail Merchants Asso., 38 N.D. 483, 165 N.W. 545; 26 C. J. 503. The defenses presented were subject to waiver. Beauchamp v. Retail Merchants Asso., 38 N.D. 483, 165 N.W. 545.
The policy was signed and delivered by Sexton as a duly authorized agent of the defendant. As such agent he attached to the policy a lightning clause, a gasoline stove permit, a trading with the enemy clause, and a percentage clause. Unquestionably, a vacancy permit attached by him, a loss clause payable to a mortgagee, his consent to an assignment of the insured's interest, all, would have been binding upon the company. His agency covered powers of issuance, of cancelation, of assignment, and of permits, for policies. Assuredly, his powers were coextensive with the powers intrusted to him. As such agent, possessing such powers, he had the authority to create and to waive conditions the same as his company. It was his act that imposed the conditions in the contract which he made. It was his acts and conduct that might waive such conditions, within the powers intrusted to him. Any stipulation in the contract to the contrary might itself be waived by him, pursuant to the powers intrusted to him, either by his express agreement or conduct. Beauchamp v. Retail Merchants Asso. supra; Bank of Anderson v. Home...
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