Burlington Insurance v. Brockway

Mr. Justice Wilkin delivered the opinion of the Court: This was an action by appellee, against appellant, declaring on two insurance policies. The appeal to this court is from a judgment of the Appellate Court for the Second District, affirming a judgment of the trial court in favor of appellee. In the application for one of the policies the insured was asked the question, “What did building and land cost .you, and when?” He answered, “$1700; value of repairs since, $1000.” This, it is insisted by the insurance company, was a warranty on the part of the assured. It is assumed that the evidence shows the property cost him but $1200, and it is said there was therefore a breach of warranty rendering the policy void. Both policies sued on contained the clause, “thé assured shall submit to examination or examinations, under oath, by any person appointed by the company, touching all actions by him deemed pertinent to the loss, and subscribe to such examination or examinations when reduced to writing; and the refusal to answer such questions or to subscribe to such examinations, when reduced to writing, shall cause the forfeiture of the claims under this policy.” It is contended the evidence showed a refusal by appellee to submit to such examination, and therefore he can not maintain this action. By each of these points a question of fact is raised. The force of the statute'prohibiting this court from questioning in this class of. ■cases the determination of the Appellate Court upon all controverted questions of fact is attempted to he avoided on the theory that by the testimony of appellee himself he admitted the property cost him but $1200, and that he did in fact refuse to submit to the required examination, therefore there is no controversy of fact on either point. This position is not supported by the record. The testimony of appellee can not be fairly construed into an admission of either fact. It is at least susceptible of a construction directly to the contrary. The Appellate Court having affirmed the judgment of the trial court, we must presume so construed his evidence, and found both facts in his favor. One of the policies, in describing the property insured, uses this language: “$1500 on the two-story, shingle roof, frame building, while occupied by assured as a store and dwelling house, situate, ” etc. In the application the description is the same, and in it appellee-answered the question as to occupancy .as follows: “First story store and dwelling“second story -dwelling.” Some weeks before the fire the building was abandoned as a dwelling, but continued to be occupied as a store ■until burned. The trial court refused to instruct the jury, at the instance of appellant, that the contract of insurance was forfeited by the assured ceasing to occupy the building as a dwelling, and that refusal is assigned for error. It is claimed by counsel for appellant that by the terms of the policy the company only undertook to insure the building so long as it continued to be occupied both as a store and dwelling. If that was the intention of the parties to the contract, they chose, to say the least, a novel way of expressing it. The policy reads: “By this policy of insurance the Burlington Insurance Company of Burlington, Iowa, in consideration, etc., do insure F. F. Broekway * * * against loss or damage by fire to the amount of $4200.” Then follows a description of the property insured, the building being described as above, after which It proceeds: “Against all such immediate loss or damage sustained by the assured as may occur by fire to the property above specified, * * * not exceeding the sum insured nor the interest of the assured in the property, except as hereinafter - provided, from the 14th day of March, 1888, at twelve o’clock noon, to the 14th day of March, 1889, at twelve o’clock noon.” The-only condition afterwards expressed as to occupancy is, “or if" the premises hereby insured are or shall hereafter become- ' vacant or unoccupied, etc., without notice, and consent endorsed on the policy, same shall be void.” The insurance is for one year by the express terms of the contract. If the company desired to make its liability contingent upon the continued occupancy of the house as a dwelling, it would have been very easy and natural to have stated that among the other conditions expressed. “A statement in a policy of insurance, or" the application therefor, as to the manner in which the build- - ing insured is occupied, is not a warranty that it shall continue to be so used during the existence of the policy. It is a warranty only as to the present use. To constitute it a continuing warranty it must be so expressed by apt words.” (Y Am. and Eng. Ency. of Law, 1036, and cases cited.) Here it is claimed, that notwithstanding the express condition as to occupancy, that nothing short of suffering the premises to become ■ vacant or wholly unoccupied shall avoid the policy, yet by reference to a clause merely descriptive of the property it is shown that the parties agreed that the contract should be void ■ unless the occupancy continued to be the same as when it was written. It is not necessary to resort to the rule requiring - such contracts to be construed most favorably to the insured, to overthrow the interpretation of this contract insisted upon by the insurance company. By no fair construction of the-policy can it be said there was a continuing warranty on the part of the assured that the building should be occupied as a. dwelling during the lifetime of the insurance. . The judgment of the Appellate Court will be affirmed. Judgment affirmed.