Germania Fire Insurance Co. of New York v. Klewer

Garnett, P. J. Appellant claims that the Hartford, policy was not a valid insurance until the expiration of the term of the first policy issued by the Agricultural Insurance Company, that is, on the 21st day of August, 1885, but that it became operative on the last named date, and so remained until after the issue of the policy sued on. If that be so, we are not informed how the liability of the Hartford Company was con-tinned more than ten days after the house became vacant. Its polic)' provided that the insurance should be void if the house became vacant and so remained for ten days, and the proof is uncontradicted that the house was vacant and unoccupied for more than ten days before the policy sued on was issued. That being the fact there was no other insurance on the premises on October 16, 1885. American Ins. Co. v. Padfield, 78 Ill. 167; .Phoenix Ins. Co. v. Tucker, 92 Ill. 64; American, Ins. Co. v. Foster, 92 Ill. 334. The vacancy of the building, however, is no defense for appellant. When the policy sued on was issued, the house was unoccupied, and had been in that condition for several weeks. Of this appellant’s agent had full notice when the policy in question was issued. Ho objection was then made to the vacancy, nor did appellee promise to have the house occupied. The injustice of permitting appellant to now deny its liability on that ground is apparent. To deliver a policy with full knowledge of the facts upon which its validity may be disputed, and then to insist upon these facts as ground of avoidance, is to attempt a fraud. This the courts will neither aid nor presume, but prefer to find there was an intent to waive the known ground of avoidance. May on Insurance 497. A review of the evidence, for the purpose of refuting the proposition that the appellee burned the building, would not be, under existing circumstances, a suitable employment of the time of this court. It is sufficient to say that the question was fairly submitted to the jury, and we think their finding for appellee is supported by the evidence; and it meets with our approval. There was no error in the instructions given for the plain iff, or in the modification of those requested by the defendant. Ao wrong has been suffered by appellant, nor is there, in the record any technical departure from the approved rules. The judgment is affirmed. Judgment affirmed.