Hotchkiss v. Home Insurance Co. of New York

| Wis. | Oct 23, 1883

OetoN, J.

The condition of the policy of insurance is that “ if the above-mentioned premises shall become vacant or unoccupied, and so remain, with the knowledge of the assured, without notice to and consent of this company indorsed thereon, this policy shall be void.” This condition applies as well to the non-occupancy of the property when-the policy was renewed, as to its being or becoming unoccupied thereafter. Devine v. Home Ins. Co., 32 Wis., 471" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/devine-v-home-insurance-co-6601241?utm_source=webapp" opinion_id="6601241">32 Wis., 471.

The evidence was that the agent of the assured informed the agent of the company, at the time of the renewal of the policy, that the premises were unoccupied, but that they would be occupied in two or three' weeks. The agent of the company said, in effect, that the policy would be of no effect unless the premises were occupied when burned. This was a waiver of the condition on the part of the company so far as the premises were unoccupied at the time the policy was renewed. Devine v. Ins. Co., supra. It is claimed by the learned counsel of the appellant (1) that this constituted a waiver of the condition of non-occupancy at the time the policy was renewed; and (2) that so far as the future occupancy was concerned, it was a contemporaneous verbal or oral agreement, which could not affect the terms of the written policy.

The waiver of the non-occupancy at the time the policy was renewed was by parol, and in the nature of an estoppel in pais, and directly in conflict with the terms of the policy, and yet it may prevail. Then why may not the condition of the waiver — which is an essential part of it, and gives it character and effect — rest in-parol also? In the above ease of Devine v. Ins. Co. it was in evidence on the part of the company that in addition to the waiver of the condition of occupancy of the premises at the time of the issuing of the policy, by reason of the agent’s knowledge that it was unoccupied at the time, and as a part of such waiver, the assured agreed or promised that they should be occupied within thirty days thereafter. This was denied by the plaintiff. The circuit court instructed the jury, in effect, that if such was the representation of the plaintiff, and the building was so unoccupied, and so remained more than thirty days immediately previous to the fire, without notice to the company and its consent, the company was not liable on the policy. This instruction was approved in the opinion • of the then chief justice, as follows: “ It is obvious that the court should not have instructed the jury that the policy was void, except only in case they found that there was an agreement to enter and occupy within the thirty days, which was the instruction given.” This is authority in favor of the validity of such an agreement, although resting in parol. In such case the agreement is not in contradiction of the terms of the policy, but rather in accordance therewith, that the premises shall not become vacant or unoccupied. The parol waiver of the condition in respect to the occupancy of the premises at the time of the renewal of the policy, and consent that they need not be occupied at that time, are directly against the terms of the policy, but the agreement that they shall be occupied thereafter is in accordance with them.

This understanding or agreement is, in effect, that the company will waive the condition of occupancy in respect to. the time-being when the policy is renewed, but no further; or that in respect to present occupancy there is a waiver on condition of future occupancy, or when the loss should occur. By a familiar rule of evidence, when proof is allowed of such waiver at the time, the whole matter of the waiver, with its terms, limits, and conditions, may be shown. The waiver for the present time could not be made available without the condition connected therewith, that it shall be only for the present. We regard the question here involved as decided in the above case of Devine v. Ins. Co,, and we believe the decision correct. The premises remained unoccupied until the fire, against the condition of the policy, which was not superseded, but rather confirmed and insisted upon,' by the oral agreement.

The point made upon the evidence, that it was proper to prove whether the plaintiff knew the conditions of the policy in respect to occupancy, was not insisted upon on the argument, probably for the obvious reason that he must be presumed to have known the conditions of his policy, unless his attention was directed therefrom by the fraud of the defendant. The evidence showing the whole understanding or agreement in respect to the waiver of the condition of occupancy, was clearly admissible, and its effect warranted the circuit court in directing a verdict for the defendant.

By the Court.— The judgment of the circuit court is affirmed.