Weidert v. State Ins. Co.

• Decision Date: 19 May 1890
• Parties: WEIDERT v. STATE INS. CO.
• Court: Oregon Supreme Court

24 P. 242

19 Or. 261

WEIDERT v. STATE INS. CO.

Supreme Court of Oregon

May 19, 1890

Appeal from circuit court, Umatilla county; JAMES A. FEE, Judge.

On the 28th day of March, 1888, the defendant insured the plaintiff's house, and certain household goods therein against loss or damage by fire. On the 9th of July of the same year, said house and goods were destroyed by fire; and this action is brought to recover the amount of such policy which is $350. The plaintiff had judgment for the full amount claimed, from which this appeal is taken. The complaint is in the usual form in such cases. On the subject of the loss, and proof thereof, it has this averment: "That on the 9th day of July, A.D. 1888, said dwelling-house, with said beds bedding, and household furniture therein, were totally destroyed by fire; *** that immediately thereafter plaintiff furnished the defendant with proof of his said loss and interest, and otherwise performed all the conditions of said policy on his part to be performed."

The answer denies each of the allegations of the complaint except the issuing of the policy and the loss. It also contains the following new matter: That the basis of said policy of insurance is the written application of the plaintiff therefor, and that said policy was so made and issued upon and under said application, and upon and under the statements, representations, agreements, and warranties therein contained. Among other things, said application contained the following provisions, to-wit: "Application is made by John Weidert, of Vansycle Cannon, county of Umatilla, state of Oregon, for insurance against loss or damage by fire, by the State Insurance Company, in the sum of three hundred and fifty dollars, for the term of one year from the 13th of March. 1888, by a policy, the usual conditions of the company, based upon the terms, agreements and statements herein and hereon, on the property hereinafter described. The applicant agrees that all valuations are made by such applicant, and that the company is not to pay, in case of loss, to exceed three-fourths of the actual cash value of any building; that if this application does not truly answer the following interrogatories, and correctly describe, state, and make known the property, the value, the title, the location, the exposures, the occupancy, the liens and incumbrances thereon, and interest therein, or if any misrepresentations or omissions to make known any and all facts material to the risk are made herein or hereon, then the said policy shall in either event be null and void. The applicant further agrees that if the applicant, or any one else, shall have, or shall hereafter make, any other insurance on the property herein named, or any part thereof or if there be any change or alteration either in the tenants, title, incumbrances, occupancy, stove-pipes passing through the roof or side of the building, or the erection of buildings or exposures, or if said property shall be conveyed or incumbered in whole or in part, whether by judgment, mechanic's lien, judicial decree, mortgage, voluntary transfer, or otherwise, or in case any of said property shall be or become vacant or unoccupied, that the said policy shall remain suspended, and be of no effect in respect to any of these contingencies, unless notice shall be given to this company, and its consent obtained in writing, and the same be indorsed upon the policy by the secretary before loss or damage shall occur. The applicant further agrees that the foregoing answers and statements are true, and a warranty on the part of the assured; that any solicitor or agent of this company, in filling out or writing this application, in performing such act is the agent of, and acts for, such applicant, and not of or for or on behalf of this company, under any circumstances or in any manner whatever, and that the company shall in no respect be bound by any act done or statement made to, promise or knowledge of, any solicitor, agent, or other person which is not in such application, and that any notice given to, representation made, or knowledge of any solicitor, agent, or person representing this company, of any fact, change, act, or thing relating to the property, title, occupancy, incumbrance, or otherwise, insured under said policy, subsequent to the issuing of the same, shall not in any wise be binding on, or be regarded as notice to, or knowledge of, this company, but in order to be binding must be indorsed in writing on said policy by the company, as provided therefor. ***" The policy, after declaring that the basis of said contract is the said application, which shall be deemed and taken as a part of the policy, and as a warranty on the part of the assured, and that any false or untrue answers, representations, or statements therein or thereon should render the said policy void, and that this contract of insurance was embraced wholly in said application and obligation of the assured; contains this further provision: "This company shall not be liable for any loss or damage while the above-mentioned premises shall be vacant or unoccupied, or resulting from the neglect of the assured to use all possible effort to keep the property safely protected against fires that may originate or start on the prairies," etc. And this: "In case said property, or any part thereof, shall be sold, conveyed, or incumbered, or if any change shall take place in the title, possession, or occupancy, *** without being immediately notified to this company, and its consent thereto obtained in writing, and indorsed hereon, and signed by the president or secretary of this company, this policy shall in either event, immediately thereafter, be null and void." The policy also contains a repetition of the statement contained in the application, to the effect that it is a part of this contract that any person other than the assured who may have procured this insurance to be taken by the company shall be deemed the agent of the assured, and not of this company, under any circumstances whatever, etc. It is then alleged that the plaintiff, in disregard and violation of the agreements, provisions, and conditions of said application and said policy, permitted and caused said dwelling-house to become and remain unoccupied prior to, and continuing up to, the time of said fire, without notifying the defendant thereof, and without in any way obtaining the consent of the defendant thereto or therefor. As a further and separate defense the defendant alleges the following facts: "That among other conditions on the back of said policy, and made a part thereof, by the terms of said policy, and by the terms of said application therefor, it is provided: 'All persons having a claim under this policy for loss or damage shall proceed at once to put the property saved or damaged in the best order possible, separating the damaged from the undamaged, and shall give immediate notice, and shall render a particular account thereof in writing to the company, stating the time, origin, and circumstances of the fire, the occupancy of the building insured, or containing the property insured, at the time of the loss; the whole value and ownership of the property insured, and all incumbrances thereon; the amount of loss upon each article; other insurance, if any, giving a copy of all policies,--all of which shall be verified by the affidavit of the assured or claimant.' " It is then alleged by special averment in the answer that the plaintiff never complied with either or any of these requirements and conditions.

The reply, among other things, contains these denials and allegations: "Plaintiff denies that, in disregard or violation of the agreements, provisions, or conditions of said or any application, or said or any policy, said plaintiff permitted or caused said dwelling-house to become or remain unoccupied for a long or any period prior to, or continuing up to, the time of said fire, without notifying the defendant thereof, or without in any way obtaining the consent of the defendant thereto or therefor; and the plaintiff alleges that, at the time he made the application to the defendant for said insurance policy, it was expressly understood and agreed by and between the plaintiff and the defendant that said plaintiff should and would be permitted at any and all times during the continuance of said policy to remove from said house, and remain from said house, to pursue certain farm labor in which plaintiff was engaged and had to do and perform, and for the further purpose of going to and returning from the mountains to haul wood for the use of the plaintiff and his family; and it was mutually understood and agreed, and defendant at the time of said application consented, that, while the plaintiff was absent as aforesaid plaintiff's wife and family might remove to some place not so lonesome as the said house of the plaintiff." The reply further denies that, in disregard of the provisions of said or any condition, the plaintiff failed or refused to give notice to the defendant in writing, or proof of his said alleged loss in writing, or at all, or to render a particular or any account thereof in writing, or at all, or the origin or circumstances of the fire, or the whole value, or any value of ownership, of the property insured, or any part thereof, or all or any of the incumbrances thereon, or the amount of loss upon each article or articles, and denies that he failed or refused to verify by affidavit or otherwise, or at all, any proof of any loss or any account or notice thereof of any kind; and plaintiff alleges that, immediately after said fire, he made frequent applications to defendant and to its agent to adjust his loss caused by said fire, but said defendant at all times neglected and...