10 Colo. App. 121 | Colo. Ct. App. | 1897
delivered the opinion of the court.
This not uncommon suit on a fire insurance policy presents some very novel and unusual features. The policy was issued to E. H. Smith, and covered property which belonged-to his wife, Mary H. The insurance was taken out when the property was in the Smith hotel, and it was afterward
The parties do not disagree as to the property insured, as to its ownership, nor as to its transfer from the Smith hotel to the Arlington. The suit was brought in the name of Mrs. Smith who was the owner, and of necessity sundry matters were alleged in order to show the liability of the company for the destruction of property which belonged to her on a policy which had been issued to her husband. Generally speaking, the complaint alleged that Mrs. Smith was the owner at the time the policy was under-written, but that the contract was made out in the name of her husband through the mistake of the agents, and without any fault on her part, and with knowledge on the part of the agents that she was the owner. She likewise charged that afterwards, and in March, 1895, before the fire, she demanded of the defendant
We now come to the statement of the facts which bear on another legal proposition which has been strongly pressed on our attention. We shall only discuss one branch of it and shall entirely ignore the point that we are urged to decide that under the peculiar phraseology of this contract there could be no waiver of a condition unless the waiver was indorsed in writing on the policy. This branch of the inquiry has been one of much controversy among the courts, and as counsel suggests has never been decided in the state, and we are disinclined to express our opinion about it because our judgment can be very safely rested on the other basis, and we prefer to wait the possible settlement of it by the court whose conclusion would establish the law of the state. As has already been stated the policy covered property in the Smith hotel. It was to be transferred to the Arlington. About this there is no question, and it is equally clear the agents were informed of the intention of the assured to .transfer it, were requested to change the policy to cover the property in the new locality, and that there was some understanding between the agent and Mr. Smith respecting it. It is a little difficult to state exactly what we conclude from the testimony without possibly going too far in the expression of our opinion, and thereby unduly influencing the jurj' on the subsequent trial. We shall avoid it as much as possible simply stating that in the case as it now stands the evidence shows what we here state. It is conceded that application was made to the agents for the purposes of a transfer. It is equally true the agents consented to the transfer, and agreed to change the policy to cover the property in the new locality. The only dispute, if there be any, is respecting the terms and conditions under which the transfer was to be made. The assured attempts to bring the case within those decisions which hold that where the agent
TMs statement and this discussion illustrates very clearly the difficulty Avith the case. According to the instructions Avhich the court gave, many questions were left to the jury Avlfich were not properly involved, and the court refused sundry and divers instructions asked by the defendant which it ought to have given in order to enable the jury to pass correctly upon the issues. It does not seem important to recite those instructions which are numerous and elaborate since the points to which they refer, and to which we have already adverted, will be clear from a very simple statement. The jury were undoubtedly told that the attention of the defendant was called to the error as to the person with whom the company contracted, and that it was claimed the agents agreed to make a correction in the policy so as to protect Mrs. Smith against loss by fire. The jury Avere left to determine whether the defendant company did agree to make such correction and assignment as she claimed, and the court stated that if the jury should find such to be the fact, she was entitled to recover as though the policy had been originally in her name. This was undoubtedly error because under the testimony there was no such question in the case at all.
There was nothing Avhatever to show that the company
This case is barren of proof to bring it within the scope of these well settled rules. Smith testified that the property was his wife’s, and he supposed the agent knew it, although he never advised him about it, and his supposition is based on the fact that according to his testimony a policy was issued to her on property in the Smith hotel, and that this policy which ran to him was in renewal either of another which ran to him, or of one which ran to his wife, and if the first, it was a renewal of one which ran to his wife on property in that house. This does not show that there was any mistake in making out this policy to him in place of to her. There might have been a change of ownership; it might have covered other property; nothing was said to the agents about it, and they testified they had no knowledge respecting its ownership. The plaintiff failed to produce the policies to show that they ran to her and not to him, were the same in form and in renewal of the same policy, and we are surprised that she was permitted to give any testimony respecting the
The court did not correctly advise the jury with respect to the question of waiver. The defendant asked numerous instructions on the subject which suggested the true rule respecting it although perhaps they were not entirely accurate in the form in which they were put, but they were sufficiently so to save the question. Under the evidence there was no
The plaintiff was not entitled to recover upon the case as she made it, the court erred in some of its instructions to the jury, and in refusing others which the defendant asked upon the propositions which have been determined, and for the errors committed in these particulars the cause will be reversed and remanded.
Reversed.