64 P. 814 | Or. | 1901
after stating the facts, delivered the opinion of the court.
The court instructed the jury, in effect, that if they found that the defendant, after the fire, received the premium, with knowledge that the dwelling containing the insured goods had become vacant and remained unoccupied more than ten days continuously prior to the loss, it thereby waived the condition of the policy, and plaintiff was entitled to recover the amount of his loss ; but if they should find that the defendant received the premium in ignorance of the vacancy of the building, and offered to return it as soon thereafter as it discovered that the condition of the policy in that respect had been violated, the defendant was entitled to a verdi’ct. An exception having been taken to this portion of the charge, it is necessary to state the substance of the testimony to which it is applicable. The plaintiff testified that on December 22, 1897, as the defendant’s local agent, he issued to himself the policy in question, and mailed a
From the correspondence between the parties it appears that the defendant was informed by the plaintiff about February 5, 1898, that the man who had charge of his property at Eugene prior to and at the time of the fire did not sleep in the house, but went there every night and morning to notice its condition. The plaintiff, on February 8, 1898, advised Thomas by letter that he had a written permit to vacate the house until February 1 of that year, and inclosed a draft for $16.83, the premium on his policy of insurance, less his commission ; and two days thereafter the cashier of the defendant company mailed the plaintiff a receipt for the sum so paid, placing
In Schmurr v. State Ins. Co. 30 Or. 29 (46 Pac. 363), it was held that where an insurance company, after knowledge of facts that render void one of its policies, retains the premium, and fails to cancel the policy, it waives the forfeiture. In that case the contract of insurance provided that it should become null and void by the erection of an adjoining building within certain prohibited limits without the written consent of the insurance company. The policy was issued by a local agent, who delivered it to the assured before all the premium had been paid, and, an electric car barn having been built within the prohibited distance, the agent was informed thereof by the insured, who inquired the amount of additional premium required in consequence of the increased risk. The agent, with knowledge of the erection of the building, accepted the money due on the premium, wrote to the
The rule is well settled that if an insurer voluntarily accepts or compulsorily collects a premium after knowledge of a breach of a condition in its policy which annuls it upon election, or retains an unearned premium after such knowledge, though it was received in ignorance thereof, it thereby waives the right to invoke the breach as a defense to an action by the insured on the policy to recover the indemnity provided for by the contract of insurance: 16 Am. & Eng. Ency. Law (2 ed.), 940. Thus, in Reaper City Ins. Co. v. Jones, 62 Ill. 458, the premium having been paid, a policy of insurance was issued containing a clause that it should be void if gunpowder was kept in a certain building without written permission. The assured sustained a loss, and it appeared that at the time of the fire he had in the building a few pounds of the prohibited article, which he kept with the knowledge and express permission of an agent of the' insurer, but the license was not evidenced by any written agreement; and it was held that the company, having accepted the premium with the knowledge that such explosive was kept in the building, thereby waived the condition of the policy. Mr. Justice Thornton, speaking for the court in deciding the case, says: “With a
So, too, in Schreiber v. Insurance Co. 43 Minn. 367 (45 N. W. 708), policies were issued which provided that they should be null and void in case any of the representations