Aurora Fire & Marine Insurance v. Kranich

MARSTON, J: Defendant in error brought her action to recover a loss under a policy of insurance issued and delivered by plaintiff in error, April 13, 1873, and renewed annually thereafter, the last renewal being April 12, 1875, which continued the policy in force one year from that date. The two principal [292] facts relied upon as a defense were, first, a failure to furnish proofs of loss according to the terms of the policy, and second, that at the time of the loss, August 12, 1875, the buildings insured were vacant and unoccupied. The provisions of the policy applicable to these defenses were as follows: “Such loss to be payable at their [the defendant’s] office in Cincinnati, Ohio, in sixty days after the proofs thereof satisfactory to this company [defendant], made and provided by the assured in accordance with the requirements of this policy, are received at said office of the company.” “The assured shall forthwith give notice to the [defendant] company of any loss, and in thirty days deliver at the office of the company in Cincinnati, Ohio, either personally or by agent, mail or express, a detailed inventory and particular account in writing of such loss, signed and sworn to by him, stating what particular property has been lost or damaged, and what the loss or damage consists in, and whether any and what other insurance has been made on the property, and building containing the property insured; about the cash value at the time of the loss of the subject insured; the interest of the assured; in what general manner (as to trade, manufacture or otherwise) the building insured or containing the property insured, and several parts thereof, were occupied at the time of the loss; and who were the occupants of such building; and copies of the written portions of all policies thereon.” “If at any time during the continuance of this policy, * * ' * the insured property, or buildings containing the same or any portion thereof, shall become vacant or unoccupied ; * * * this company shall be absolved from all liability under this policy.” The charge of the court (b) in reference to waiver of [293] proofs of loss by the company was, as to the facts referred to therein, fully sustained by the evidence introduced on the trial. The law is well settled, we think, that the company may waive strict compliance with the policy in this respect, and that where the company does, either in express terms waive proofs of loss, or by a course of conduct calculated to throw the insured off her guard, as by a distinct refusal to pay the loss, based upon some other defense, so that proofs are not furnished within the time fixed in the policy, the company cannot afterwards come in, and take advantage of the delay as a defense to the action.—The Hibernia Insurance Co. v. O’Connor, 29 Mich., 241. It is also worthy of notice that the policy does not declare the effect of a failure to furnish proofs of loss within the time mentioned, while for a violation of its provisions in other respects it expressly provides that the company shall be absolved from all liability under the policy. It would be at least a question of some doubt, whether a failure to furnish proofs within the time fixed, would deprive the insured of all rights, even if there had been no waiver in this case. As, however, the jury, from the evidence submitted, and under proper instructions, found a waiver on the part of the company, it is perhaps unnecessary to decide what the effect of a failure would have been in case there had been no waiver. The evidence seems to have been clear, and in effect un [294] disputed, that at the time the policy was first issued in April, 1872, the buildings were unoccupied, and that the agent who issued the policy was informed of this fact. Such being the case, had they remained unoccupied even up to the time of the loss, there can be little or no doubt but that the insured would have been entitled to recover. The company could not insure vacant buildings, take and retain the premium, and in case of loss relieve itself from responsibility, under a claim that it was not liable unless they were occupied, unless some provision was inserted in the policy, by which the insured agreed they should not be permitted to remain vacant. Besides, the provision inserted in this policy as to vacant buildings has no application to buildings that are vacant at the time the policy is issued, to the knowledge of the^coinpany. The provision is, that “if at any time during the continuance of this policy * * * the insured property, etc., * * * shall become vacant or unoccupied.” Clearly this refers and applies to property occupied at the time the policy is issued and afterwards becoming vacant. If, however, the property is unoccupied when the risk is taken, and there is no provision in the policy requiring the insured to make any change in this respect, we are of opinion the company would be liable under the policy for a loss occurring at a time when the property was vacant, even although it might appear that intermediate the date of issue of the policy and date of loss the [295] property had been actually occupied. Under such circumstances the risk is in no way increased or changed. The property is in no worse situation at the time of the loss than it was when the policy was issued. The policy, although framed to carefully guard the rights of the company, makes no provision for such a state of facts, and the law will not step in and relieve the company from responsibility, where the provisions of the policy have not been violated by the insured, and where the state of the property has at all times during the continuance of the policy been in as favorable a condition as it was when the policy was issued. — May on Ins., § 191. The renewals, although amounting to a new contract, in no way changed the terms and conditions of the policy, except as they continued it in force. The rights of both parties, no matter how often a policy of insurance may have been renewed, are still bound by the provisions of the policy as originally issued. Its terms are neither enlarged, restricted or changed. True, there’ may be such a knowledge of facts brought home to the parties at the time the policy is extended by renewal as would amount to a waiver of some of its provisions, but the same result would in most if not in all cases follow where the facts were brought to the knowledge of the parties at any other time. While such information can be used to show a waiver, it is not admissible for the purpose of incorporating provisions into the contract not previously contained therein. In this case there was evidence tending to show that the agent of the company had at several times been informed that different tenants had been occupying the premises, and that for portions of the time they were vacant. The court refused to instruct the jury that “there is no evidence in the case, that at the time of the last insurance the company had knowledge of the fact that the premises were -vacant.” The instructions given upon this branch of the [296] case (c) were, we think, quite as favorable, if not more favorable than the plaintiffs in error were entiLled to. The other errors assigned are immaterial. The judgment must be affirmed, with costs. The other Justices concurred. Footnotes [(b)] “ The proof of loss required by the terms of this policy is to be furnished within a certain time. This time having been fixed, and the parties agreeing to it, they were bound by it, and if the party fails to abide by the terms of his agreement, then he forfeits his right under the contract. He must be bound by the terms of the contract, as he made it. But notwithstanding this obligation on the part of a party to furnish the proofs within [293] the proper time, and the right of the company to insist upon it in case of insurance, there may_ be a waiver. This is a right adopted for the benefit of the insurance company, and if the company chooses to waive it, it can do so.” The court further instructed the jury: “Mere silence is not to be taken as a waiver of the right of the insurance company to insist upon a strict compliance with the contract. But where there are other acts done, as acts have been done here, either by the company or its agents, you may take these acts into consideration, in order to discover whether there has been any waiver. In this case two acts are mainly relied upon by counsel for the plaintiff. Those two acts are what was said by Mr. Duvernois, as the agent of the company, and the act of the company in the letters written to the attorneys, when communicating with the home office as to this matter. The act with which Mr. Duver [294] nois is most immediately connected is simply a statement on his part, when informed of the loss here, that the company would not pay, because the premises were not occupied. In other words, as they claim, the statement was substantially this: ‘You have not carried out the terms of the contract providing for the occupancy of the premises, and we shall rely upon that as our defense.’ If that was the effect of it, and if that was intended to be the effect of the statement, then you may consider that as a waiver, or take the fact into consideration as a waiver of the right to insist upon proof at the proper time. On the other hand, if such is not, in your view, the fair inference to be derived from the statement, — I say, -if the facts as they actually occurred do not lead to that inference, — then there was no waiver of this right, and they had a right to insist upon the terms of the policy being carried out as to the proofs.” [(c)] The court charged the jury on the question of occupation: “ Although the policy in this case specifies .that the premises were occupied by a tenant, still if the agent of the company knew that, as a matter of fact, when the policy was originally issued, the premises were not occupied by a tenant, then the plaintiff is entitled to recover. That applies to the policy as originally issued. “It appears that there were certain renewals here, running through three or four j'ears. Now, if at the time of these renewals the buildings were represented as being occupied, and subsequently they became vacant, and neither the agent nor the insurance company had any knowledge of such vacancy, then the insurance policy would become void, because by one of the very terms of this insurance policy, which we have read to you, we discover their intention is to insure occupied property. Now, in this case, if when the policy was originally taken out, or at any subsequent time, when the policy or insurance was renewed or continued, there was a representation made that these premises were occupied, and subsequently they became unoccupied and were destroyed while they were so unoccupied, and neither the agent nor the company had any knowledge of this, though the policy can he operative, then the plaintiff so far as this point has any bearing, would not be entitled to recover. “You will take all the testimony into consideration, and see whether there was a representation that these premises were occupied at that time, and if there was a representation that they were so occupied, and the premises were afterwards destroyed while they were vacant, the plaintiff is not entitled to recover.” And the defendant excepted to that part of the charge which left it for the jury to say whether the agents had any knowledge of the vacancy of the property at the time of the renewals. And the court further charged the jury: “Still further, if you shall come to the conclusion that the agent knew that the premises were unoccupied at the time of issuing the policy, or at the time of any of these renewals, and that notwithstanding he issued the renewals, then the second question will he whether there was a waiver of the proof of loss.”