128 Ga. 353 | Ga. | 1907
(After stating the facts.)
The defendant is a mutual co-operative insurance company. The by-laws of such a company, adopted in pursuance of the charter and existing, at the time of the issuance of a policy, become a part thereof, and the assured is presumed to have notice of them. Civil Code of 1895, §2135. A by-law of this company, in existence when the insurance was effected, declared that “Liabilities cease at once on dwellings in the association, in which seed-cotton or loose lint cotton is stored.” The policy, on its face, provided that “The association and the insured shall be governed by the by-laws of the association.” ' The parties had a right to make the contract of insurance, and to include as one of its terms that the liability on a dwelling-house should cease at once upon the storage of seed-cotton in the house. The contract was so made and it was binding. Ostrander on Fire Ins. (2d ed.) §§329, 330, pp. 706, 707. Seed-cotton was stored in the house, and it was destroyed by fire while the cotton was there. It was ordinarily used as a residence by a tenant and his family, and was a dwelling, within the meaning of the by-law. It is contended that because the owner had rented the property, reserving no control over it, and the storing of the cotton in the house was the act of the tenant, unknown to the owner, it did not avoid the policy. The exact question has not been decided in this State. In Adair v. Southern Mutual Ins. Co., 107 Ca. 297, where the policy under consideration provided for a forfeiture “by any change in the use or condition of the building, including additions or repairs, or by the erection of other buildings, or-in any other manner by which the degree of the risk is increased, unless due notice is given to the company and a new agreement is entered into,” it was held that the words “change in the use or condition” referred to a change of a permanent nature, and not to a mere temporary use. In discussing the question whether the act of the tenant would affect the insurance of the landlord, Mr. Justice Lewis (p. 305) said: “We are inclined to think, however, that the correct rule on this subject is laid down by the Supreme Court of Pennsylvania in the case of Long v. Lycoming Ins. Co., 14 Ins. L. J. 622, where it was held in effect that if the act which increased the insurer’s risk was that of the tenant, unknown to the landlord, it was no excuse for the infringe
Outside of this State, while there are some decisions to the ■contrary, the great weight of authority is to the effect that, under a provision of a policy like that now before us, a forfeiture will result from a violation of it by the tenant of the insured, though unknown to the landlord. In Long v. Beeber, 106 Penn. St. 466 (51 Am. R. 532), the case cited in Adair v. Southern Mutual Ins. Co., supra, it was held, that under a clause of a policy providing that it should be void if the risk should be increased by the manner ■of occupancy or use of the premises, “or by any means whatever,” without the assent of the company indorsed on the policy, increase ■of risk by the use by the tenant of the insured of a portable boiler and steam-engine for threshing could be shown; and that “it was immaterial whether the act of the tenant was with or without the knowledge or assent of his landlord.” In the case at bar the provision was not merely against increase of risk, but specifically against storing seed-cotton or loose lint cotton in a dwelling, and for so doing a forfeiture was provided. In Badger v. Platts, 68 N. H. 222 (73 Am. St. 572), it was held that “if a policy of insurance provides that it shall be void if naphtha is used on the premises insured, the use of naphtha by a tenant of the insured invalidates the policy, so far as the insured is concerned, whether he knows of its use or not.” See also 3 Joyce on Ins. §2222; 2 Beach on Ins. §712, and citations; 1 May on Ins. (4th ed.) §227; Kelly v. Worcester Mutual Fire Ins. Co., 97 Mass. 284; Diehl v. Adams County Mutual Ins. Co., 58 Penn. St. 443 (3); Hoxsie v. Providence Mutual Fire Ins. Co., 6 R. I. 517; Norwaysz v. Thuringia Ins. Co., 204 Ill. 334; 2 Cooley’s Briefs on Ins., 1710-1711.
2. It is argued that the tenant, not the landlord, had control of the premises, and that the occupancy of the tenant put the insurance company on notice of that fact, and of his rights in regard thereto. But notice that the insured had let the premises to a tenant did not constitute notice of a violation of a provision of the jpolicy in regard to storing seed-cotton in a dwelling-house, or operate as a waiver of the forfeiture resulting therefrom.
Judgment affirmed.