15 Del. 32 | Del. | 1895
delivered the opinion of the Court.
An action of covenant was brought on an insurance policy in the Superior Court of the State of Delaware in and for Kent County, by the plaintiff against the defendant, being No. 55 to the October term, 1889, and pleaded to issue. On the 27th day of April, 1892, at the April term of said court, a case stated was agreed upon by counsel, and filed, and an order made directing that all the questions of law contained therein should be reserved to be heard before all the judges.
The defendant issued to the plaintiff a policy of insurance, bearing date July 7th, A. D. 1884, covering certain real and personal properties situated on the southwest corner of William Street and the Delaware Railroad, near the town of Dover, Delaware, owned and used by the plaintiff for the manufacture of glass. By the terms of the policy, the defendant, in consideration of the representations of the assured, and the conditions and limitations therein mentioned, and of $39.38 (the premiums), did insure the plaintiff against loss or damage by fire, to an amount not exceeding $2,250 for one year,—from 12 o’clock noon of said date to 12 o’clock noon July 7, A. D. 1885. The conditions to which said insurance was expressly made subject, and which are material to this case are as follows: “ Or if, during the existence of this policy, or any renewal thereof, the risk shall be increased by any means whatever, with the knowledge of the assured, and the assured shall neglect to notify this Company thereof, and have the same indorsed hereon, paying therefor such additional premium as shall be demanded, or shall allow the building herein covered to become vacant and unoccupied, * * * or shall sell or transfer the property herein insured, or incumber the same, without notice to
A judgment for the real debt of $1,718.67, by confession was obtained by Hazel & Pennewill against the plaintiff in the said Superior Court, being Ho. 197 to the April term, A. D. 1888, of said court, on which a writ of fieri facias was duly issued, being Ho. 106 to the October term of said court. The time of the entry or confession of said judgment was September 8, A. D. 1888, at 9 o’clock A. M. On said writ the Sheriff made the following return : “ Sheriff returns levied on goods and chattels as per inventory and appraisement annexed and afterwards, to-wit, on the 18th lay of September, A. D. 1888, goods and chattels offered for sale at public vendue, were not sold because the bidders to whom the same were struck off refused to pay for the same, and would not
On the 5th day of October, A. D. 1888, certain portions of the real and personal properties insured were consumed by fire, of which the defendant had due notice. The amount of the loss is agreed to be $900, apportioned as follows: $600 on the real and $300 on the personal estate. No special agreement with refference to the conditions to which the insurance was made subject was endorsed on said policy, nor any notice given by the plaintiff to the defendant of executions and the proceedings thereon, or of the fact that the property had ceased to be operated as a manufacturing establishment. The defendant denies the right of the plaintiff to recover any part of the amount claimed, upon the ground that the conditions, in regard to encumbering and levying upon the property covered by the policy of insurance and the operation of the establishment were violated. The policy and the conditions therein, define or fix the relations between the parties thereto and furnish the measure of their respective rights and liabilities. Courts cannot go outside of the agreements of parties to determine their mutual or reciprocal obligations. To do so would have the effect of imposing terms to which they had not assented, or absolving them from duties which they had voluntarily assumed. It is the province of courts to interpret, and not to make,
With these elementary principles in view, let us proceed now to examine the contract which is the cause of action in this case, and the relation of the parties as determined by their conduct in regard to the subject-matter thereof. An insurance in relation to-property is a contract whereby the insurer becomes bound, for a definite consideration, to indemnify the insured against loss or damage to certain property named in the policy, by reason of certain perils to which it may be exposed. It is competent for the insurer to prescribe the terms and conditions upon which it will take the proposed risk, provided they are not illegal nor contrary to-public policy The acceptance of these conditions consequently imposes upon the insured the duty of a substantial compliance therewith, and any neglect thereof in any material respect, unless waived or condoned, will relieve the insurer from liability in case of loss, whether it can be traced to such neglect or not. One reason for this is that he has, by agreeing to the terms upon which the insurance was made, shut the door against any inquiry as to the cause of the loss. Another and a more general reason is that,
As the rights of the insurer, then, under the conditions in regard to liens, are strictissimi juris, they cannot be held to apply to involuntary encumbrances, such as tax liens and judgments procured in invitum, because the insured cannot control the action of the government or his creditors, either as to time or place, within the limits of the law. To sanction the forfeiture of a right upon
Let us now consider the facts in relation to these conditions. That the plaintiff gave mortgages and confessed judgments that bound all its real estate without first having obtained consent of the defendant thereto, and that no express agreement was ever made waiving the effect thereof upon the policy as a subsisting contract, are not disputed; neither is it denied that the contract against incumbrances is valid or that the creation of such liens constitutes a breach of the same. The counsel for the plaintiff insists only upon a strict adherence to the rule which requires a resolution of all doubts, whenever they arise, in favor of the plaintiff, and that the acts of the defendant should be construed into a waiver of the forfeiture and a recognition of the plaintiff’s right to recover. As to the first proposition the Court assents. As to the other it cannot to the extent claimed. Suppose we concede that the defendant, by its act, did waive any cause of forfeiture on account of any incumbrance created prior to July 7, 1888, the date of the last renewal of the policy; yet it nowhere appears in the statement of facts that the defendant had any notice of the judgment in favor of Hazel & Pennewill for $1,718.67, nor of the one in favor of Caleb S. Pennewill et al. for $5,000, obtained by confession against the plaintiff September 7th and 8th, respectively, nor of the mortgage collateral
The reason assigned for avoiding the insurance on the realty might be adopted as a sufficient reason for avoiding the insurance on the personalty: but. as the plaintiff’s counsel insisted with so much earnestness and ability that the levies made on the personal . property did not amount to a breach of the prohibition in regard to the same, as they did not involve the removal of it from the possession of the plaintiff, it is proper that serious thought should be given to their contention. The clause under which it is made is as follows: “ If the property hereby covered shall be levied upon or taken into possession or custody under any proceeding in law or equity * * * all insurance upon this policy shall thereupon cease.” The Supreme Court of the State of Pennsylvania, in the case of Commonwealth Ins. Co. vs. Berger, 42 Pa. St. 285, decided that a levy made without the removal of the property from the possession of the owner, under a condition in the policy expressed in language precisely like the one herein referred to, would not avoid the insurance. This case is cited as conclusive. The opinion of the Court proceeds upon the idea that the phrases “ levied upon ” and “ taken into possession or custody ” are exact equivalents, the latter being used to explain and limit the former; that is, the phrase “ taken into possession or custody ” is employed to restrict the phrase “ levied upon ” to an actual seizure of the property and dispossession of the owners, according to the common-law method of making a levy. A levy evidenced by a mere memorandum or inventory and appraisement of the property intended to be levied upon, or a constructive seizure thereof only, was not, therefore, a violation of the condition. The reasoning of the learned Judge who delivered the opinion in this case would be very sound and unassailable if there were not other words connected with the
It is also stated that the plaintiff provided watchmen who were in the buildings day and night until the fire occurred, October 1, 1888. But did this answer the demands of the condition? The defendant, as we have before said, stipulated in that condition for the care and supervision of the workmen, and a substitution of watchmen for them was not a compliance with the terms of the contract. And though the risk may not have been changed or increased by such a substitution, yet the defendant has a right to insist upon the fulfillment of the contract as the ground of its liability for the loss. The plaintiff contends that the ceasing to operate the establishment did not affect the liability of the defendant because its risk thereby was not increased. The case of Lattomus vs. Insurance Co., reported in 3 Houston 404, is referred to in support of such contention. That case is entirely different from the case at bar. The facts were that Lattomus obtained an insurance on a stock of goods in a storehouse in the town of Clayton. • The company had a by-law which is in these words: “ When the risk has been changed, either within itself or by the surrounding or adjacent buildings, it shall be incumbent on the insured to make the proper representations to the nearest agent, and have the same corrected or adjusted, and manifested in writing, by the secretary; otherwise, the company will not be responsible.” This by-law was treated as a part of the contract of insurance. The defendant alleged that the plaintiff erected a shed adjoining the' store which contained the stock of goods, and insisted that that was a violation of the contract. The Court in that case properly charged that, if the erection of the shed adjacent to the store increased the risk of the defendant, the plaintiff could not recover, but that, if it did not increase the risk, he could recover. This language of the Court in that case was in accordance with the terms of the contract, which made an increase of risk the test of the defendant’s responsibility. It could not have been otherwise. But in the present case the liability of the defendant is not based
Let a certificate in accordance with this opinion be drawn up and transmitted to the Superior Court in and for New Castle County.