Wakefield v. Orient Ins. Co. of Hartford, Conn.

• Decision Date: 17 December 1880
• Citation: 50 Wis. 532,7 N.W. 647
• Parties: WAKEFIELD AND OTHERS v. ORIENT INS. CO. OF HARTFORD, CONN.
• Court: Wisconsin Supreme Court

50 Wis. 532

7 N.W. 647

WAKEFIELD AND OTHERS

v.ORIENT INS. CO. OF HARTFORD, CONN.

Supreme Court of Wisconsin.

Filed December 17, 1880.

Appeal from circuit court, Winnebago county.

Finch & Barber, for respondents.

J. W. Lusk, for appellant.

TAYLOR, J.

This is an action to recover upon a policy of insurance upon a dwelling-house. At the time of the fire the dwelling-house insured was vacant and unoccupied, and had been for two months. The evidence shows that at the time of the fire the policy was, and had been for a year or more, in the possession of the agents of the company, kept by them for the use and benefit of the owners thereof; that amongst other conditions in the policy were the following: “If the premises insured shall at any time during the life of this policy become vacant, by the removal of the owner or occupant, without immediate notice to this company, and indorsement made on the policy, this insurance shall be void and of no effect. This insurance may also be terminated at any time, at the option of the company, by giving a written notice to that effect to the insured. In such case the assured shall be entitled to claim a ratable proportion of the premium for the unexpired term for which the policy was to run.”

The evidence showed that at the time the insured premises became vacant the insured notified the company's agents of that fact, and that no indorsement of any kind was made on the policy after such notice and before the loss; that no written notice was given by the company or its agents to the insured that the insurance was terminated, or that the company considered the policy void on account of such vacancy. Whether the agents of the company notified the assured orally that the policy was void, or that they should consider it void on account of such vacancy, absolutely or during the time of such vavancy, was a disputed question, and was submitted to the jury as a question of fact upon the whole evidence. The real point of difference between the parties is as to the construction of the conditions of the policy above cited. The learned counsel for the appellant insists that the true construction of the condition first above quoted is that the policy is void “if the premises become vacant during its life, and the insured does not give immediate notice of such vacancy, and procure the consent of thecompany, either indorsed upon the policy or otherwise, that the policy shall remain valid notwithstanding such vacancy.” He treats the condition as rendering the policy void by reason of the fact that a vacancy of the premises has occurred; and if the insured desiresto continue the policy notwithstanding the vacancy, he must give immediate notice and get the company's consent to such vacancy.

The learned counsel for the respondent contends that the true construction is that a vacancy does not of itself avoid the policy, but that two things must concur to avoid it, viz., a vacancy, and a failure on the part of the insured to give immediate notice to the company of the fact that the premises are vacant; that, when the assured has done this, he has done all that he can do under the condition, and that it then becomes the duty of the company either to declare the policy terminated, under the second condition above quoted, or to make such other indorsement upon the policy as may be agreed upon by the parties. And this latter construction is the one adopted by the learned circuit judge before whom the action was tried. He instructed the jury upon this question as follows: “There is no dispute but what the house was vacant; there is no dispute but that the agents of the company had notice from Mr. Wakefield that the house was vacant. Mr. Wakefield having given that notice, it was at the option of the company whether they would continue to carry the insurance on that house during the vacancy, or the want of occupation, or not. They had the right to refuse to carry that insurance during that want of occupancy, but if they wished to repudiate it or cancel it, and not be responsible upon it, they must give notice according to the contract in writing of their refusal to do so. I said that, in order to avoid liability after being notified that the house was vacant, they must give the insured notice that they will not be responsible upon that policy in consequence of that being so. The notice by the contract was required to be given in writing.” This instruction was duly excepted to by the appellant, and it is insisted that it was clearly erroneous, The learned circuit judge afterwards instructed the jury that, although the contract required the company to give notice in writing, yet, if a parol notice was given by the company, or its agents, that they refused to carry the insurance during the want of occupancy, and the insured did not insist on having a written notice, he waived his right to such written notice, and the plaintiff could not recover.”

After a careful examination of the evidence as presented by the record, we cannot say that the evidence does not support the verdict if the instructions of the learned circuit judge are correct. It is insisted by the learned counsel for the appellant that because the insured admitted on the trial that the agents for the company had informed him “that they were notified not to carry insurance on vacant buildings,” they could not if they were so disposed continue the policy after the insured buildings became vacant. It is possible that this might be so if, under the conditions of the policy, it became void by the mere fact that the buildings were vacant or unoccupied. But it is unnecessary to decide this question if the construction given to the policy by the learned circuit judge is correct. If that construction is correct, then the policy does not become void on the happening of non-occupation and immediate notice thereof, but upon notice given by the company to the insured that it terminates the risk on account of such non-occupation. The want of such notice is not waived by knowledge on the part of the insured that the agents were instructed generally not to carry policies in such cases. If the policy required a notice to be given to the assured, an instruction by the company to its agents to give such notice in every case which occurred, cannot be set up as a reason for not giving a notice in any case. We think the case must turn upon the correctness of the instructions given to the jury by the learned circuit judge, and if they are correct then the judgment must be affirmed; otherwise it must be reversed. We are inclined to hold...