154 N.W. 830 | S.D. | 1915
Lead Opinion
Action on an insurance policy, to recover the value of a barn damaged by windstorm. The policy is the standard form of fire insurance policy of 1905, with, a rider attached which makes the policy in the form thus used a tornado, cyclone, and windstorm insurance policy, and makes the terms of the fire insurance policy applicable to the tornado insurance, “in so' far as the difference in conditions between them may apply.” The provisions of the policy, so far as material to this appeal, are as follows :
“This policy shall be void * * * if without such assent the situation or conditions affecting the insured property shall be altered so as to materially increase the hazard, if such increase in hazard be occasioned by the act or agency of the insured, or if without such assent the insured shall sell and dispose of all insurable interests in the insured property. * * *”
Attached to this policy was a mortgage clause making" the loss, if any, payable to J. D. Newcomer Co. or assigns, mortgagee (or trustee), as his interest may appear. The policy further provides that:
“If this policy shall be made payable to the mortgagee or trustee of the insured real estate, no -act or default of any person other than such mortgagee or his agents or those claiming under him, shall affect such mortgagee or trustee’s rights to recover in case of loss of such real estate * * * and in case this policy shall have been issued to the owner of the insured property with the loss payable to a mortgagee, and the owner shall have done any act voiding the policy as herein provided, or the policy shall have been canceled so that the company is not liable to- him in any event, then the mortgagee upon payment to him of the full amount secured by such mortgage shall assign to the company or companies making such payment, the mortgage, together with the note or debt secured thereby. * * * Any person who solicits insurance or issues policies of insurance or procures applications therefor, shall be held to be and considered the general agent of*343 the insurer issuing the -policy or making a renewal thereof', except as to -proof of loss and adjustment thereof. * * *”
The -policy further provides that:
“It shall be the duty of the insurer in order to avail himself of any provision in this policy rendering it void, to- promptly cancel the policy -as provided herein, upon having or obtaining notice or knowledge of the existence of any facts or circumstances which would, according to the terms of the policy, render i-t void; otherwise it will be deemed to have waived such provision or provisions voiding the policy.”
The answer alleges that after the issuance of the policy, and without -the knowledge or assent of the defendant, the plaintiff Wm. L. Moulton entered into a contract in writing with C. H. and L. L. Rowley, whereby he covenanted and -agreed that, on payment of certain sums at times therein specified, he would convey and sell to- them certain lands, including the premises described in the policy; that at the time of the execution of said contract, the Rowleys paid the sum of about $1,500, on the purchase price, and made further payments -about May and October of that year, aggregating some $4,500; that upon the execution of said written agreement, the plaintiff delivered possession of all the lands and premises, including that described in the policy of insurance, to the vendees, who retained possession thereof, up to and including the time when the barn described in the complaint was damaged in a windstorm, on -or about July 8, 1912; that after the execution and delivery of said contract, and the delivery of possession of said premises, the plaintiff presented said pol-icy to •the defendant, and requested it to attach thereto- the mortgage clause wherein the loss, if any, was -made payable to the plaintiff J. D. Newcomer Company, and that upon such request, and without any knowledge on the part of'-the defendant, of the sale of said lands, and without any assent thereto, -the defendant, 'believing the said plaintiff to be the full and true owner and in possession of said lands, at the request of plaintiff, indorsed and attached to said policy the said mortgage clause. The defendant further alleges that by reason of the written agreement for the sale of said lands, and the transfer of possession thereof, the policy of insurance became void, and the defendant not liable .for the amount of loss claimed for damages to said barn; that the
Appellant also excepted to testimony of the plaintiff Moulton, tending' to show the original cost of' the various articles and materials of which the barn was constructed. There was no error in either of these rulings. It has been held that an owner should be allowed to put in evidence all facts which a vendor would adduce if he were attempting a private sale. Ark. Midland R. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550; Little Rock Junc. R. C. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51.
“The measure of damages in an action for such a loss is the value at the time of the loss; and, to arrive at that, the original cost, the cost of a like building at the time of the - trial, and the difference in value between the house burned and a new one by reason of age -and use are all proper subjects of inquiry.” Elliott on Evidence, § 2317; Holter Lumber Co. v. F. F. Ins. Co., 18 Mont. 282, 45 Pac. 207.
See, also, Porter v. Hawkins, 27 Mont. 486, 71 Pac. 664; Atchison, T. & S. F. R. Co. v. Huitt, 1 Kan. App. 781, 41 Pac. 1049.
“Our reports are full of cases which hold that any person acquainted with property and its value, or the value of like property, is a competent witness to prove its worth; and, if competent, and he testifies, it is for the jury to estimate the value of his testimony as they do that of other witnesses.”
“Every interest in property, or any relation thereto, or liability in respect thereof, of such a nature that a contemplated peril might directly damnify -the insured, is an insurable interest.”
It has been many times 'held that a vendor in a contract for sale of real -property, where no conveyance has been made, and only part of the purchase money paid, has an insurable interest in the property included in the contract. Cooley, Briefs on -the Law of Insurance, vol. 1, p. 188 (8 A.), and cases there cited.
Appellant further contends that by reason of the contract of sale and the vendee’s possession thereunder the situation or conditions affecting the insured property were soi altered as to- materially increase the hazard, and avoid the policy. Respondent contends, and we think with much reason, that neither the contract of sale nor change of possession thereunder could affect the
The undisputed evidence of at least one witness, wholly disinterested so far as the record shows, discloses ■ that the contract of sale between Moulton and the Rowleys was canceled in October, 1911, and the original contract returned to Moulton. It also appears that during the year 1912, Moulton was in possession of the premises and paid the taxes and the interest accruing during that year on the J. D. Newcomer mortgage. The issues as to an avoidance of the policy by the sale, and a waiver of the forfeiture by reason of the knowledge of the sale by Brewer, the alleged agent of the defendant, thus became wholly immaterial, and the instruction's given by the court as to those issues, if erroneous, did not prejudice the legal rights of the appellant, even if the contract for a sale of the premises and the change of possession would avoid the policy, a question we do not decide. Such a change of interest would, at most, merely suspend the insurance until such time .as the insured became reinvested with the entire estate. It is unnecessary to review the numerous decisions which sustain this view, because the question is settled by our statute.
Section 1808, Civ. Code, provides:
“An interest insured must exist when the insurance takes effect, and when the loss occurs, but need not exist in the meantime.”
Section 1809, Civ. Code, also declares that, except in certain cases named:
“A change of interest in any part of the thing insured unaccompanied by a corresponding change of interest in the insurance, suspends the insurance to an equivalent extent, until the interest in the thing, and the interest in the insurance are vested in the same person.”
Many courts have adopted the same rule, in the absence of a statute. State Ins. Co. v. Schreck, 27 Neb. 527, 43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696; Power v. Ocean Ins: Co., 19 La. 28, 36 Am. Dec. 665; Sumter v. Phœnix Ins. Co., 76 S. C. 76, 56 S. E. 654, 10 L. R. A. (N. S.) 736; Lane v. Maine Ins. Co., 12 Me. 44, 28 Am. Dec. 150.
We have carefully examined the entire record, and -are satis
Concurrence Opinion
I concur in the result. I prefer to base such concurrence on the ground that there was ample evidence to- warn rant the jury in finding, and we must therefore presume it did find, that defendant’s general agent, Brewer, was fully advised as to the existence of the contract between the plaintiff -and the Row-leys. The jury was clearly and fully instructed upon this point.