90 Wash. 631 | Wash. | 1916
— On April 12, 1912, the respondent, being then the owner of certain household goods, insured the same with the appellant company in the sum of $900. The policy issued was in form a New York standard policy, and purported to insure the goods for a term of three years, “all while contained in the frame building while occupied only as a dwelling, known as dwelling No. 30, at Franklin, King coun
But two questions are suggested by the record; first, did the policy as written cover the property at the place to which it was removed; and, second, is the insurance company estopped by its acts from asserting that it did not cover them.
The first question, we think, must be answered in the negative. An insurance company has the right to determine for itself what property it will insure and at what place it will insure it, and to provide that the policy shall become void if the property is removed from the designated place without its consent. This policy provides, in unmistakable terms, that the property described thereon is insured only while at the designated location, unless otherwise provided by agreement indorsed thereon; and, clearly, such a condition is of the essence of the contract and the court cannot hold that it covers the property elsewhere without making a new contract for the parties. Such is the effect of our holdings in the cases of Henschel v. Oregon Fire Marine Ins. Co., 4 Wash. 476, 30 Pac. 735, 31 Pac. 332, 765; Jump v. North British & Mercantile Ins. Co., 44 Wash. 596, 87 Pac. 928, and Ferguson v. Lumbermen’s Ins. Co., 45 Wash. 209, 88 Pac. 128. And such, also, as we understand it, is the general rule. See, Clement, Fire Insurance, p. 57, and cases there collected; also, note to case of Benton v. Farmers’ Mut. Fire Ins. Co., 26 L. R. A. 237.
Our attention is called to § 34 of the Insurance Code (Laws of 1911, p. 197, § 34, 3 Rem. & Bal. Code, § 6059-34), as modifying the general rule above stated. This section reads as follows:
“No oral or written misrepresentation or warranty made in the negotiation of a contract or policy of insurance, by the*634 assured or in his behalf, shall be deemed material or defeat or avoid the policy or prevent it attaching, unless such misrepresentation or warranty is made with the intent to deceive. The breach of a warranty or condition in any contract or policy of insurance shall not avoid the policy nor avail the insurer to avoid liability unless such breach shall exist at the time of the loss and contribute to the loss; anything in the policy or contract of insurance to the contrary notwithstanding. In case a loss occurs while a breach of warranty exists, if it contribute to the loss, the insured shall only be entitled to recover the amount of insurance the premium paid would purchase at the rate that would be charged without the warranty. This section shall be liberally construed.”
The argument is that the clause of the contract relating to the place in which the goods are insured is a warranty or condition, and that, in virtue of this provision of the statute, the removal of the goods to another locality will not avoid liability unless such removal contributes to the loss. But, without following the argument of counsel, we think it neither a warranty nor a condition as the terms are here used. A condition, according to the definition of Mr. Black, is “an agreement or stipulation in regard to some uncertain future event, not of the essential nature of the transaction, but annexed to it by the parties providing for a change or modification of their legal relations on its occurrence;” while a warranty, according to the same authority, is “An undertaking or stipulation, in writing, or verbally, that a certain fact in relation to the subject of a contract is or shall be as it is stated or promised to be.” The clause of the contract in question is neither of these. On the contrary, it is an essential part of the contract, as much so as is any other part of the promise to insure. The contract is that the insurer shall be liable for their loss by fire while they remain at the particular building, not while away from it. It is a simple contract to insure while the property is at a particular place. No conditions or warranties, such as the statute contemplates, are involved.
The judgment should have been in favor of the defendant below, not the plaintiff. The judgment is therefore reversed and the cause remanded with instructions to enter a judgment for the defendant.