Parmeter v. Williamsburgh City Fire Ins. Co.
| Decision Date | 01 December 1921 |
| Docket Number | 358 |
| Court | North Dakota Supreme Court |
Action in District Court, Dunn County, Pugh, J.
The defendant has appealed from a judgment in favor of the plaintiff.
Affirmed.
Judgment affirmed with costs.
Lawrence Murphy & Nilles, for appellant.
"A witness who feigns forgetfulness of circumstances collateral to his main story which he must recollect if he has any memory at all, and with respect to which he is open to contradiction if untrue is unworthy of belief." Gibbons v. Potter, 30 N.J.Eq. 204.
Assignment of property and insurance thereon as security for a debt renders the policy void under a provision in the policy making it void if the interest of the insured is other than unconditional ownership, or if any change takes place in his interest, title, or possession. Smith v. Ins. Co. (S D.) 42 L.R.A. (N. S.) 172; 137 N.W. 47; 14 R. C. L, p 1120.
A mortgage is within a condition against conveyance of any interest in the property. 79 Tex. 23, 11 L.R.A. 293, also 88 Mich. 94, 13 L.R.A. 684.
A provision against change of interest is violated by the inclusion of the property in a mortgage thereof through negligence or inattention of the assured. Fireman's Fund v. Barker, 6 Colo.App. 535.
A condition making the policy void if the interest of the insured in the property should be changed in any manner, whether by act of the parties or by operation of law will include the giving of a mortgage upon the property. O'Neil v. Ottawa Ins. Co. 30 U. C. C. P. 151, 12 Can. L. J. 2071.
A conveyance, absolute in form by the insured is a transfer or change in title, avoiding the policy, although there is a written defeasance dehors the deed or an equivalent contemporaneous parol agreement. Barry v. Hamburg Ins. Co. 11 N.Y. 1, 18 N.E. 405.
A conveyance to secure the payment of a debt for the construction of a building made without insurers consent, invalidates the policy. Athens Mutual F. Ins. Co. v. Evans, 132 Ga. 703, 64 S.E. 993; Gibbs v. Ins. Co. 61 N.W. 137 (Minn.).
Occupancy of a dwelling house implies the actual use of the house as a dwelling place, the presence of human beings therein as at their customary place of abode. Ashworth v. Builders' Mut. F. Ins. Co. 112 Mass. 422, 17 Am. Rep. 117; Herrman v. Adriatic F. Ins. Co. 85 N.Y. 162, 39 Am. Rep. 644; Burner v. German-American Ins. Co. 103 Ky. 370, 45 S.W. 109; Stoltenberg v. Continental Ins. Co. 106 Iowa 565, 68 Am. St. Rep. 323, 76 N.W. 835; Sonneborn v. Manufacturers' Ins. Co., supra; Bonenfant v. American F. Ins. Co. 76 Mich. 564, 43 N.W. 682.
And the leaving some one to look after the house when it becomes vacant is not sufficient to save the forfeiture of the policy. Bonenfant v. American F. Ins. Co. 76 Mich. 653, 43 N.W. 682.
Even though the person left in charge lives within the same inclosure. Burner v. German-American Ins. Co. supra.
Even the fact that the insured, or some member of his family, or his hired man, visits the dwelling house every day to see that things are all right is not sufficient to save forfeiture. Weidert v. State Ins. Co. 19 Or. 261, 20 Am. St. Rep. 809, 24 P. 242.
A vacancy beyond the time limit, without a permit or consent, forfeits the policy. Piscatauga Savings Bank v. Traders Insurance Co. 8 Kan.App. 241, 55 P. 496; Examiner Phoenix Ins. Co. v. Burton, Tex. Civ. App. 39 S.W. 319; Joyce on Ins. Co. 4 p. 3802.
If a house is left for an entire season with no one in it, a policy containing a condition that it shall be void if the premises become "vacant" or "unoccupied" is avoided, though the furniture be left therein. Herman v. Adriatic Fire Ins. Co. 85 N.Y. 162, 39 Am. Rep. 644; Alston v. Old State Ins. Co. 80 N.C. 326; Fitzgerald v. Connecticut Fire Ins. Co. 64 Wis. 463, 25 N.W. 785; Joyce on Ins. Vol. 4, p. 3802.
And merely leaving furniture where the building is unoccupied at night is insufficient, even though a hired man has general oversight of the property and frequently inspects the same. Hanscom v. Home Ins. Co. 90 Me. 333, 38 A. 324, 27 Ins. L. J. 19; Joyce on Ins. Co. Vol. 4, p. 3803; Soubert v. Fidelity-Phoenix Ins. Co. 40 L.R.A. (N. S.) 58-59.
If the policy has become void by reason of a violation of a condition against nonoccupancy without the consent of the insurer indorsed on the policy it is not revived when occupation of the premises is subsequently resumed. Joyce on Ins. Vol. 4 p. 3800; Moore v. Phoenix Ins. Co. 62 N.H. 240, 13 Am. St. Rep. 556; See §§ 2239, 2240 herein; East Texas Ins. Co. v. Kempner, 87 Tex. 229, 47 Am. St. Rep. 99, 27 S.W. 122; Joyce on Ins. Vol. 4, p. 3800.
A statement in answer to an inquiry in an application made by stipulation a part of the policy, but which partially discloses the truth as to the amount of mortgages or the character of the same, and which is calculated to induce the belief that the entire truth has been told concerning the same, when as a fact it has not and there are other mortgages, or mortgages to a larger amount than stated, will avoid the policy. 14 R. C. L. 1062; Connecticut, Treadway v. Hamilton Mutual Ins. Co. 29 Conn. 68; Iowa, Glade v. Germania Fire Ins. Co. 56 Ia. 400, 9 N.W. 320; Massachusetts, Brown v. Peoples' Mut. Ins. Co. 11 Cush. (65 Mass.) 280; Hayward v. New England Mutual Fire Ins. Co. 10 Cush. (64 Mass.) 444; Kibbe v. Hamilton Mut. Ins. Co. 11 Gray (77 Mass.) 163; Bowditch Mut. Fire Ins. Co. v. Winslow, 8 Gray (74) (Mass.) 38, s. c. 3 Gray (69 Mass.) 415; Falls v. Conway Ins. Co. 7, 7 Allen (89 Mass.) 46; Minnesota, Cerys v. State Ins. Co. 71 Minn. 338, 73 N.W. 849, 27 Ins. L. J. 258; New Hampshire, Marshall v. Columbian Mut. Fire Ins. Co. 7 Fost. (27 N. H.) 157; New York, Smith v. Agricultural Ins. Co. 118 N.Y. 522, 23 N.E. 883.
T. F. Murtha, for respondent.
Courts quite uniformly hold that under provisions similar to the one under consideration, the giving of a mortgage does not void the policy. 19 Cyc. 742; 19 Cyc. 745; 19 Cyc. 746-D; Wolf v. Ins. Co. (Wis.) 91 N.W. 1014 6 Syl.; Peak v. Ins. Co. (Utah) 51 p. 255; Koshland v. Ins. Co. (Or.) 49 p. 866.
The deeds being in fact mortgaged did not avoid the policy, 19 Cyc. 746-D; Barry v. Ins. Co. (N. Y.) 17 N.E. 405; Ins. Co. v. Gibe, (Ill.) 44 N.E. 490; Ins. Co. v. Fox, (Neb.) 96 N.W. 652; Henton v. Ins. Co. (Neb.) 95 N.W. 670; Bank v. Ins. Co. (Kan.) 49 p. 329; Bldg. & L. Asso. v. Ins. Co. (Kan.) 86 p. 142; Slobodisky v. Ins. Co. (Neb.) 72 N.W. 483; Wolf v. Ins. Co., (Wis.) 91 N.W. 1014; Myles v. Ins. Co. (Wash.) 193 p. 703; Bowling v. Ins. Co. (W. Va.) 103 S.E. 285; Ins. Co. v. Shepard (Ind.) 126 N.E. 447; Lavenstein v. Ins. Co. (Va.) 101 S.E. 331; 99 S.E. 579.
The false swearing, if there was such, to avoid the policy, must be willful, and upon a material matter. 19 Cyc. 855-6; 19 Cyc. 950, note 42; Alfred Hiller Co. v. Ins. Co. (La.) 32 L. N. S. 453, annotated.
Our Court has said in no uncertain terms that the Insurance Company cannot hold on to the premiums and avoid liability. Yusko v. Ins. Co. 39 N.D. 66; 166 N.W. 539; Horswill v. Ins. Co. 178 N.W. 798; L.R.A. 1917 D. 1091, 4 Syl.; L.R.A. 1917 F. 663; See 6530 to 6544, C. L. N.D. 1913.
This is an action upon a policy of fire insurance. By consent a jury was waived and the cause submitted to the trial judge. The defendant has appealed from a judgment entered upon findings favorable to the plaintiff. In February, 1916 defendant issued to the plaintiff its insurance policy upon his dwelling and household furniture, in the amount of $ 750, for a term of three years from February 21, 1916. This policy was a renewal of like insurance theretofore written by the defendant in February, 1913, for the plaintiff's wife, and thereafter transferred by the defendant to the plaintiff upon the decease of his wife. The dwelling was situated upon 160 acres of land in Dunn county, which formerly was the United States government homestead of the plaintiff's wife, and thereafter passed to the plaintiff upon her decease. Plaintiff's title was quieted by judgment dated May 20, 1916. This house was a one-story building about 12x20, with a rubberoid roofing, and contained two rooms. The plaintiff and his wife fully occupied this building as their home until her death, which occurred, apparently, shortly prior to the year 1914. Then, pursuant to plaintiff's testimony, he continued to live in the house, and occupied the same up until the time of its destruction by fire. He worked for his father, who lived about 1 1/2 miles distant from his place, and frequently stayed there. In this dwelling remained the household furniture and plaintiff's personal belongings. When this policy was written there were unsatisfied mortgages existing against the land. Later these mortgages were satisfied. Plaintiff placed a new real estate mortgage upon the land. He also issued a warranty deed, which was used, pursuant to his testimony, for purposes of security only. Plaintiff testified that the soliciting agent of the defendant knew about the mortgages when the application was received. Notice of loss was given to the defendant by plaintiff's affidavit to the effect that he was absent from the premises from the morning of December 4 until the afternoon of December 6, 1918, and that the property was burned during his absence. In plaintiff's proof of loss he claimed 250 mechanical books. At the trial he testified that the fire occurred during the latter part of November; that at the time he was away in Dickinson; absent from the premises four days, and that the loss by fire occurred during such absence. He testified that he only had 32 mechanical...
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