76 Neb. 31 | Neb. | 1906
Plaintiff in error issued an insurance policy to the defendant in error, providing for indemnity in case of loss occasioned by winds, cyclones or tornadoes. The policy contained these stipulations:
“It is agreed that if the assured shall have, or hereafter accept, any other insurance on the above mentioned property, whether valid or not, or if the above mentioned buildings be or become vacant or unoccupied, or be used for any other purpose than that mentioned in said application, without consent indorsed hereon, * * * in each and every one of the above cases, this policy shall be null and void. Nor will this company be liable for any cyclone, .tornado, or windstorm loss or damage on buildings in course of erection unless fully inclosed, nor for buildings or their contents, except said buildings rest on good and substantial foundations, securely inclosed so as not to admit of an unnecessary current of wind circulating through or under them, nor for buildings or their contents covered, in whole or in part, with hay, straw, thatched or board roof, nor for the blowing down of defective chimneys, loose clapboards, shingles or window blinds.”
The form of the policy admits of its use for either fire and lightning, or tornado insurance, or both. The buildings insured by the policy were at the time the policy was issued occupied, by a tenant, who afterwards vacated the premises, and while they were vacant one of the buildings was damaged by a windstorm, and thereupon the assured made proof and submitted to the company a proposition
“Lincoln, Neb., April 19, 1904. Sarah R. Bodge, Kearney, Nebraska. Dear Madam: We received a notice from S. S. St. John of a claim purporting to have been made by you on property covered by policy No. 101,634, having been alleged to have been occasioned by wind. We sent a representative of this company to investigate the matter, and upon arriving he found the place vacated, no one living in the house, barn or on the premises, and from inquiry from the neighbors he learned that no one had been living there since last February. You are aware that such vacancy is in direct violation of the conditions of your policy, and no company without special permission ever intends to cover such a risk. In addition, our representative ascertained that the property was in poor condition and in most places uninsurable. Repairs had long been needed, but nothing seems to have been attended to. We are inclosing you a draft for $6.35, which is the unearned part of the premium on your policies, $3.10, $3,25, and desire to cancel same immediately. Upon receipt of this, kindly forward the policy, and oblige, Ydurs truly, L. P. Funkhouser, Secretary. Cancelation of policies, 101,634, 3.10; 99,630, 3.25.”
Action was instituted on the policy, resulting in a judgment favorable to the assured, from which the company prosecutes error.
It is sought to sustain the judgment of the trial court on three grounds: First, because the provision in the policy avoiding the insurance in the event the buildings werte or should become vacant applies only to insurance against fire, and was not, within the contemplation of the parties, intended to apply to tornado insurance; second, if it was intended to apply to tornado insurance, that it is immaterial, because the vacation of the buildings does not increase the hazard as a tornado risk; and, third, if it was, within the contemplation of the parties, intended to apply to tornado insurance and is material, that it was waived
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
The following opinion on rehearing was filed February 8, 1907. Former judgment of affirmance vacated and judgment of district court reversed:
A former opinion in this case is reported, ante, p. 31. Our conclusion was there put upon the ground that the
“Lincoln, Neb., April 19, 1904. Sarah R. Bodge, Kear-ney, Nebraska. Dear Madam: We received a notice from S. S. St. John of a claim purporting to have been made by you on property covered by policy No. 101,634, having been alleged to have been occasioned by wind. We sent a representative of this company to investigate the matter, and upon arriving he found the place vacated, no one living in the house, barn or on the premises, and from inquiry from the neighbors he learned that no one had been living there since last February. You are aware that such vacancy is in direct violation of the conditions of your policy, and no company without special permission ever intends to cover such a risk. In addition, our representative ascertained that the property was in poor condition and in most places uninsurable. Repairs had long been needed, but nothing seems to have been attended to. We are inclosing you a draft for $6.35, which is the unearned part of the premium on your policies, $3.10, $3.25, and desire to cancel same immediately. Upon receipt of this kindly forward the policy, and oblige, Yours truly,
“L. P. Funkhouser. Secretary.
“Cancelation of policies 101,634, 3.10; 99,630, 325.”
It is insisted on behalf of the defendant in error that this letter amounts to a Avaiver of the forfeiture provisions of the policy, and we are cited to the case of Home Fire
“And it is agreed that if the assured shall have, or hereafter accept, any other insurance on the above mentioned property, whether valid or not, or if the above mentioned buildings be or become vacant or unoccupied, or be used for any other purpose than that mentioned in said appli: cation, without consent indorsed hereon, or if the property be or shall hereafter become mortgaged or incumbered, or if the same be or hereafter become involved in litigation, or upon the commencement of foreclosure proceedings, or in case any change shall take place in the title, possession, or interest of the assured in the above mentioned property, or if this policy shall be assigned, or if the risk be increased in any manner, except by the erection of additions and repairs to dwelling and of ordinary out-buildings, without consent indorsed hereon, then, in each and every one of the above cases, this policy shall be null and void. Nor will this company be liable for any cyclone, tornado, or windstorm loss .or damage on buildings in course of erection except fully inclosed, nor for buildings or their contents, except said buildings rest on good and substantial foundations, securely inclosed so as not to admit of an unnecessary current of wind circulating through or under them, nor for buildings or their contents covered,*38 in whole or in part, Avith hay, straw, thatched or board roof, nor for the bloAving down of defective chimneys, loose clap-hoards, shingles, or window blinds.”
It will he observed that some of these provisions are general and others limited in their application, and it is argued on behalf of the defendant in error that only such provisions as are limited to cyclone, tornado and windstorm insurance apply to that class of insurance. We cannot, hoAvever, so construe the contract. It is plain that the special provisions quoted as applicable to tornado, cyclone and windstorm insurance Avere intended as additional conditions to those that are general in terms. We do not wish to be understood as saying that a disregard of any one of the general provisions would work a forfeiture of windstorm or cyclone insurance, but we should give effect to those stipulations Avhich are material to the risk. At the time the policy in suit was issued the buildings covered by the insurance Avere occupied by a tenant; they later became vacant and Avere vacant at the time of the loss. The question as to Avhether the vacancy of the buildings increased the hazard is the vital question in the case, and Ave think it did. In Sexton v. Hawkeye Ins. Co., 69 Ia. 99, and Republic County M. F. Ins. Co. v. Johnson, 69 Kan. 146, 76 Pac. 419, the identical question was involved, and in each case it Avas held that the stipulation against vacancy was material. They are both well-reasoned cases and Ave are satisfied that the conclusion reached is correct.
The plaintiff had judgment, from Avhich the insurance company prosecuted error. Giving effect to the stipulation against vacancy contained in the contract, the judgment was erroneous, and Ave recommend that our former opinion be vacated, the judgment of the district court reversed and the cause remanded.
By the Court: For the reasons stated in the foregoing
REVERSED.