4 Kan. App. 7 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
The Concordia Fire Insurance Company issued a policy of insurance September 12, 1889, insuring IT. F. Johnson against loss by fire on a certain building owned by him in Kansas City, Kan., for a period of one year to the amount of $1,500. The property insured was destroyed by fire July 11, 1890. November 12, 1890, this action was commenced in the court of common pleas of Wyandotte county to recover the amount of said policy. On a trial had by jury, a verdict was returned and judgment rendered in favor of the plaintiff for the full amount of plaintiff’s claim. Of this judgment the insurance company complains, assigning for error various rulings of the court occurring upon the trial.
The main contention of the insurance company is, that by reason of certain conditions of the policy it had been released from liability, and the policy had become void prior to the time of the fire. The principal matters relied upon are the conditions with reference to incumbrances, other insurance, change of occupancy, and unlawful use. The policy provides that it shall become void and of no effect if, without the consent of the company, the property shall become incumbered, if other insurance shall be taken thereon, if the premises shall at any time be occupied or used for any purpose different from that written in the policy, if the premises shall become vacant or unoc
The terms and conditions of a contract of insurance, the same as of any other contract, are binding upon .the parties thereto, and must control in the determination of their respective rights. The defendant insurance company had a right to require, as the condition upon which its contract of indemnity should continue, that the hazard or risk should remain unchanged from what it was when the policy was written. It had a right, also, within reasonable limits, to stipulate what should be regarded as an increased hazard, and that if at any time such existed the policy should become null and void. But while this-is so, all the conditions and provisions were subject to change, and might be waived by the party for whose benefit they were inserted. There was sufficient evidence with reference to the mortgage, the additional insurance and the change of occupancy of the building to show that, as to them, there had been a waiver by the company, through its agent.. Counsel, however, contend that Marsh man, the agent, had no authority to waive any of the conditions of the policy, and that such want of authority was known to the plaintiff. With this contention we cannot agree. Whatever the rule may be elsewhere, it is well settled in this state that an agent such as Marshman is shown to have been can bind the company by a waiver of the conditions of a policy issued by him, and that a general limitation upon the authority of all agents of the company, such as is contained in this policy, is nugatory. (German Ins. Co. v. Gray, 43 Kan. 497 ; Phenix Ins. Co. v. Hunger, 49id. 178 ; Long Island Ins. Co. v. G. W. Hfg. Co., 2 Kan. App. 377.) To constitute a waiver, how
A more serious question is presented concerning the unlawful use of the premises. The insurance company contracted that it should be relieved from all liability for loss, if the premises were used in a manner prohibited by the imlicy. An unlawful use is expressly designated as an increased hazard and risk which the insurer will not assume. On his part, the assured binds himself that the premises shall not be put to the prohibited use. Having control of the property, it is not unreasonable to hold him responsible for the nature of its occupancy and for the consequences of the acts of -those who have occupied it with his permission. If his tenant, or the person in possession with his consent, does that which the policy says shall forfeit its benefits, his knowledge of the doing of the forbidden thing is immaterial. If done by him, or by one occupying the premises with his assent, it is sufficient. (German Ins. Co. v. Comm’rs of Shawnee Co., 54 Kan. 732.) We do not think that the mere fact of occasional gambling in the building could of itself be said to be making an unlawful use thereof within the meaning of this condition of the policy. Something of a more habitual or permanent character is doubtless contemplated. With reference to unlawful use, and knowledge thereof by the assured, the court instructed the jury as follows :
“If gambling-tables were set up and used for*12 that purpose, and continued for some considerable length of time, then', I say to you, the plaintiff could not excuse himself by pleading ignorance of that fact. While he would not be charged with the occasional violation of the law, when done without the plaintiff’s knowledge, yet he would be charged if that was one of the principal uses that the building was put to, and for such length of time that a reasonably prudent man ought to have been aware of what was going on in the building. But, though it may have been used for such purpose some time before the fire, and it was not being used for any such purpose at the time of the fire, and the fire had no connection with such use of it, then, I say to you that that fact alone, while it would suspend the force and effect of the policy during the illegal use of the premises, yet, if that had ceased some time prior to the time of the fire, that of itself would not avoid the policy.”
This instruction, we think, was erroneous and misleading. In the first place, it tells the jury that the unlawful use of.the premises would hot avoid the policy unless the plaintiff either had actual knowledge thereof, or it had continued for such a length of time that he must, as a reasonably prudent man, be presumed to have known of the same. In the next place, the jury is instructed that the unlawful use of the building would not avoid the policy, if it was not being so used at the time of the fire and the fire had no connection with such use. As to the knowledge of the plaintiff, this instruction is erroneous, under the authority of■ German Ins. Co. v. Comm’rs of Shawnee Co., supra. Neither do we think it necessary that any connection should be shown between the fire and the unlawful use. The insurance is forfeited because of the recognized increase of the risk which such use naturally occasions, without showing that in the particular instance it contributed to the loss. The ex
Other errors are assigned upon the rulings of the court, but, as they are not likely to occur upon another trial, we deem it unnecessary to consider them.
The j udgment will be reversed, and case remanded for a new trial.