Jerdee v. Cottage Grove Fire Insurance

Tatloe, J. We are satisfied that the learned judge decided the case rightly. By an examination of the policy issued, it will be seen there are no conditions or clauses of forfeiture in the same. Under all the rules governing insurance upon such a policy the assured may recover if he have an insurable interest in the propertj7 insured at the date of the loss, at least to the extent of such interest. Unless there be something in the statute, articles of association, or by-laws of the company which declares a forfeiture of the policy because of a change of the interest or title of the assured in or to the property insured during the life of the policy, the judgment was clearly right. Sec. 1932, R. S., declares as follows: “ The conditions of insurance bj^ town insurance companies are such as are fixed by the by-laws of such corporation, or by the resolutions of its annual meetings.” The only by-laws or resolutions of the corporation which pretend to make any conditions in its policies are by-laws 7 and 14. The following are copies of such bylaws : “ Sec. 7. Policies of insurance may be assigned with the consent of the president and secretary, the parties paying fifty cents recording fees, at the .same time giving his [352] undertaking to the company, and the company will not hold itself responsible for loss on property so transferred until such assignment so made and undertaking given.” “Sec. 14. The company will not insure unoccupied dwelling-houses, nor be liable for nor pay any loss on any dwelling-house in which the insured and his family shall have ceased to live for ten days, or to occupy by tenant, of which fact the said secretary shall be fully notified, and give his consent by his indorsement to that effect on the policy.” These by-laws, to say the best concerning them, are not clear as to what is intended by them, and their meaning is rather suggested than expressed by the language used. It is claimed, however, that the policy was forfeited for a violation of the provision of by-law 7. The learned counsel for the appellant contend that this by-law declares, in substance, that the policy of the assured shall be void if there be any transfer of, or change of title to, the property insured during the life of the policy, unless the policy be assigned to the person to whom the property is transferred in the manner prescribéd by the by-law, and that in such case the liability will be only to the assignee of the policy. "We think the only construction which can make this bylaw sensible is that, when there is such a transfer of the property insured as to divest the policy-holder of all insurable interest therein, then the company-shall not be liable on the policy, unless it be transferred to the purchaser of the property in the manner prescribed, and that it has no application to a transfer of the assured property which is of such a nature as to leave an insurable interest in the original policy-holder. The by-law was evidently adopted for the purpose of continuing the benefits of a policy issued to a vendor, to his vendee, when the vendor transfers all his interest in the property insured to such vendee, and not to a case where there is a mere change of the vendor’s interest in the property insured. If it be the policy of'town insurance companies to make [353] insurance void whenever any change of title to the insured property shall be made during the life of the policy, it will be necessary for the company to adopt a by-law clearly stating such condition. Under the present by-laws there is clearly no such declaration of forfeiture. All courts have upheld the right of the policy-holder to maintain his action for a loss so long as he retains an insurable interest, unless there be a condition in the policy which declares a forfeiture by reason of a change of such insurable interest. See Hitchcock v. North Western Ins. Co. 26 N. Y. 68, and other cases cited by the counsel for the respondent in their brief. The principal object of by-law 14 was to prevent the company from insuring unoccupied dwelling-houses. This dwelling-house was, at the date of the insurance, occupied by the tenant of the assured, and not by him and his family, and it was subsequently occupied by the vendee of the assured more than ten days before the fire. The object of the by-law being to prevent the insurance of unoccupied dwellings, it may, at least, be questionable whether the policy would be avoided so long as the same was occupied by some one lawfully entitled to the possession, when such possession is lawfully derived from the owner, who has the insurance thereon; but, whether this be so or not, the evidence, we think, clearly shows that the company waived any right to declare the policy void under this by-law. The officers of the company knew of the change of occupancy long before the loss. And after the loss, when the claim, of the plaintiff was presented to the board of directors, they made no objection to the payment of loss on that gropnd, and directed the assured to make his proofs of loss, w'hich he afterwards did, at considerable expense. This, under the decisions of this court, was a waiver of a forfeiture under this by-law, if there ever was such forfeiture. See Gans v. St. Paul F. & M. Ins. Co. 43 Wis. 108, 114; Webster v. Phoenix Ins. Co. 36 Wis. 67; Northwestern Mut. L. [354] Ins. Co. v. Germania F. Ins. Co. 40 Wis. 446; Appleton Iron Go. v. British Am. Ass. Co. 46 Wis. 33; Oshkosh G. L. Co. v. Germania F. Ins. Co. 71 Wis. 454, 458. We ñnd no error in the record. By the Court.— The judgment of the circuit court is affirmed.