85 W. Va. 134 | W. Va. | 1919
On August 26, 1916, the defendant issued, to the plaintiff a policy of fire insurance covering for one year a house in the city of Williamson, West Virginia, and providing for indemnity in the sum of fifteen hundred dollars. The policy was issued on what is known as the Hew York Standard Form, and provides that the same shall be void, unless otherwise provided by agreement endorsed thereon or attached thereto, if the interest of the insured he other than unconditional sole ownership, and further that the said policy shall be void if the building described becomes vacant or unoccupied, and so remains for ten days. There are many other stipulations, conditions and warranties contained in the policy, but these are the ones that are particularly involved in this litigation. The plaintiff owned the remainder in the property after the life estate of Sylvania Wol-ford, and for the .purpose of showing his real interest in it an endorsement was attached to the policy as follows: “This policy covers the fee simple interest of B. R. Bias, Trustee, in the remainder of the property insured after the life estate of Syl-vania Wolford in house and improvements on lot 7, block 13, Williamson, West Virginia.” At the time the policy was issued, and at the time of the fire, the life tenant was living. The house was destroyed by fire on the 19th of May, 1917. It had
It is very uniformly held that a condition or stipulation in a policy of fire insurance providing that the same shall be rendered void if the premises insured shall remain vacant and unoccupied for a specific length of time is a reasonable and binding condition, and should such premises be destroyed by fire while vacant and unoccupied, and after the same had so remained for a longer time than that provided in the policy, the insurer will be discharged from paying the indemnity therein provided. Joyce on Insurance, § 2229; IP Cooley’s Briefs on the Law of Insurance, p. 1652 &c.; 19 Cyc. 726; 14 R. C. L., Title, Insurance, § 281 &c. Indeed, it is not contended by the insured that this stipulation is not a reasonable and binding one, but he insists that when the company placed the endorsement thereon showing that he was the owner of the remainder after the life estate of Sylvania Wolford, it thereby had information that he was not entitled to the possession of 'the property, and could not control the same, and having this information it waived the condition in the policy requiring the premises to be occupied. His contention is that when the insurer wrote the policy with the knowledge that he was a remainderman, and did not have the right to the possession of the property, it thereby waived the performance upon his part of all promissory warranties which could only be performed hy one having the possession, or the right to the possession, and because of the fact that -only one having the possession, or the right to the possession, could control the occupancy of the premises, this condition avoiding the policy in case the same became vacant and unoccupied did not apply to the estate covered by this policy of insurance. Counsel in argument admit that they can find no authority on either side of this proposition, and after a careful search we are likewise unable to.find any case directly in point,
Can it be said that by placing the endorsement upon thé policy above referred to the insurer in this case waived the condition in the policy relied upon to defeat recovery, or made that condition inapplicable to the estate insured? It must be borne in mind that there are many conditions and promissory wkrra'n
We are of opinion that the findings of the court below in favor of the defendant are correct, and the judgment rendered upon such findings will be affirmed.
Affirmed.