133 P. 1183 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
The evidence tended to show that the plaintiffs were the owners of the personal property insured.
1. The plaintiff H. M. Oatman, when a witness in his own behalf, was asked who owned the real estate insured in the policy sued on, and answered: “My wife, Mr. Lane’s boy, Mr. Lane’s wife, Floyd Weaver, and
Mr. Oatman, one of the plaintiffs, testified that Mrs. Homer Oatman is his wife, but asserts that he and Mr. T. A. Lane paid the consideration for said deed and that his wife did not pay anything for said dower right or for said personal property. However, the deed is made to her and not to him. He never had any deed for any interest in said land, and hence he had no
2. In an action on an insurance policy, the plaintiff must allege and prove that the insured had an insurable interest in the property, both at the time of the making of the contract of insurance and at the time of the loss: Chrisman v. State Ins. Co., 16 Or. 283 (18 Pac. 466); Hardwick v. State Ins. Co., 20 Or. 547 (26 Pac. 840). In this state a husband has no insurable interest in his wife’s property: 19 Cyc. 589; Agriculturad Ins. Co. v. Montague, 38 Mich. 548 (31 Am.
The evidence tends to show that the plaintiffs had an insnrable interest in the personal property referred to in the policy and that T. A. Lane had an insnrable interest in the dwelling-house, but the plaintiff Oatman appears not to have had any interest in the house. There is an irreconcilable conflict in the decisions of the courts as to whether agents of insurance companies can waive conditions in contracts of insurance. This court in several cases held that conditions in such contracts could be waived: Arthur v. Palatine Ins. Co., 35 Or. 27 (57 Pac. 62, 76 Am. St. Rep. 450); Allesina v. London Ins. Co., 45 Or. 442 (78 Pac. 392, 2 Ann. Cas. 284).
3. But in 1907 the legislature of this state passed an act on this subject (Section 4666, L. O. L.) changingthis rule, and this act was amended in 1911: See Laws of 1911, pp. 279-284. This statute requires insurance companies to incorporate into their policies, inter alia, the following condition: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * if the- interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple,” etc. Under this provision, which is a part of the policy sued on, less than an unconditional or sole ownership or an interest less than a fee simple may be insured, but a statement setting forth such interest must be indorsed on the policy or added thereto or the policy is void. The policy sued on contains the conditions of the statute quoted, supra, but contains no indorsement or statement showing that the insured’s' interest in the real property on which, the dwelling-house was situated was less than a sole ownership, or that their estate
4. It was argued by the respondent that said statute did not affect the validity of the policy, and that it merely imposed on an insurance company a fine for noncompliance with its terms. But we think that noncompliance with its terms invalidates the policy, so far as it applies to interests in real property.
The statute declares that, unless its terms are complied with, the policy shall be void, and statutes are to be construed according to the language used. This statute was construed by this court recently in Finlon v. National Union Fire Ins. Co., 65 Or. 493 (132 Pac. 712), and it was there held that noncompliance with the provisions of said statute invalidated the policy. In that case, commenting on the statute referred to, Justice Burnett said: ‘ ‘ There being no agreement to the contrary indorsed upon the policy or added thereto as required by the statute, that instrument [the policy] was shown to be void, making plaintiff’s case amenable to the objection urged by the motion for a non-suit.” We follow that decision and hold that the policy in this case is void so far as it attempted to insure the dwelling-house.
5. The policy in this case placed $1,600 on the dwelling-house and $400 on personal property. We hold that the policy is separable and that it is void as to the $1,600 on the house and valid as to the $400 on the personal property.
19 Cyc., p. 626, says: “When the contract (policy) is invalid as to part of the risk, it may be enforced as to that part as to which it is not invalid, if the two can be separated. ‘Agreements or stipulations in a policy, which are forbidden by law, will be disregarded and the contract sustained.”
In the first instruction given by the trial court to the jury is contained the following: “There has been some evidence introduced here tending to show that there was a deed made by the parties owning this property to Mrs. Oatman and to Mr. Lane, and the evidence tends to show that he was guardian of Harold Lane. I instruct you as the law that the ownership of such an interest, with the knowledge of the defendant making the policy, would be an insurable interest, and the plaintiffs under such a state of facts would be entitled to recover, under the policy, the value of the property destroyed.”
The evidence shows that the deed referred to in the foregoing instruction was made by Mrs. Emma Dement, and that all the interest that she had or conveyed was her right of dower in said premises, and she conveyed this dower right to Mrs. Oatman, Mr. Lane, and J. B. Harris; Mrs. Oatman and Mr. Harris are not among the beneficiaries of the policy issued, and all the evidence as to the fee-simple title of the land, upon which the dwelling-house was situated, tended to show that it was vested in a number of heirs who were not beneficiaries of the policy. It is evident that the plaintiffs acted in good faith in obtaining this policy, and that the defendant’s agent knew substantially what the facts were as to the title of the real premises, but the statute referred to, supra, declares that a policy issued as this was issued is void. It is our duty to obey the mandate of the law and. hold that it is void as to the dwelling-house. It follows that the above instruction was erroneous. It is not necessary to pass on the other questions raised by this appeal.
Reversed : Rehearing Denied.
Rehearing
Denied September 9, 1913.
On Petition for Rehearing.
(134 Pac. 1033.)
delivered the opinion of the court.
6. The respondents petition for a rehearing, and claim that the appellant waived the following condition, written in the policy sued on (Laws 1911, pp. 279, 280) : “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be 'void * * if the interest.of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple,” etc. The meaning of this provision is clear. It signifies that, where one insures a building situated on land which the insured does not own in fee simple, the policy is void, unless an agreement showing what the insured’s interest is is indorsed on the policy or added thereto, and hence, according to said condition, the policy is void.
The respondents attempt to escape the effect of said condition by alleging that the company’s agent who obtained the insurance knew that the plaintiffs did not own or claim to own the fee-simple title to the land on which the house stood, and they claim, also, that the plaintiff Oatman told the agent that the property belonged to an estate, and that he was agent for the
Both the statute and the policy declare that the policy shall be void if the insured does not own the land in fee simple, unless an agreement to that effect is indorsed on the policy or added thereto. It does not state or mean that it shall not be void if the company or its agent knew, when the policy was issued, that the insured did not own the property in fee. The policy is declared to be void in the absence of an agreement, either in the policy or indorsed on it, showing what the insured’s interest is, if it is less than the fee, and, as this condition states one limitation thereon, all others are excluded; the old maxim: “ Expressio unius est exclusio alterius,” being applicable. The statute (Laws 1911, p. 279) requires every insurance company to write into its policies the condition stated, supra, and other conditions set forth in the statute, and declares that such conditions “shall form a portion of the contract between the insurer and assured.”
According to the policy sued on and the statute referred to, said condition is a part of the contract
But this uniform policy act was enacted for the purpose of settling various questions in regard to life insurance, on which the decisions of the courts of the different states were in hopeless conflict, and we believe that two objects in the enactment of this law were to create uniformity in the policies to be issued and to make the conditions set forth in the law and incorporated into the policies binding contracts on the companies and on the insured. It would be unreasonable to believe that no change was effected in the law of insurance by the enactment of this statute. The state of "Wisconsin enacted a uniform policy law like the one in this state, and this law was construed by the Supreme Court of that state in Bourgeois v. Northwestern Nat. Ins. Co., 86 Wis. 606 (57 N. W. 347). The Wisconsin law contained this provision (the same as the Oregon law): “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy,” etc. In the case referred to the company issued a policy, and; at the time it was issued, the agent of the defendant company was informed that the insured would soon thereafter procure additional insurance on the property in another ■ company, and by parol gave Ms assent thereto. The only question before that court was whether the agent could waive by parol one of the printed conditions of
“In 1891 an act was passed by our legislature providing for the uniform policy of insurance to be issued in this state, known as the ‘Standard Insurance Policy. ’ This act went into effect September 1,1891. The policy in suit here was the standard policy provided for by that act, was issued December 16, 1891, and consequently must be governed by the provisions of that act. * * It provides in clear and distinct terms that other conditions may be printed or written upon or attached to the policy, but that they shall not be inconsistent with, nor a waiver of, any of the provisions or conditions of the standard policy. In thus providing that other conditions may be incorporated in the policy by writing or printing, other methods are plainly excluded under familiar legal principles. The intent plainly was and is that, so far as the conditions and provisions of the standard policy go, they shall govern, and that they shall not be omitted, changed, or waived in any manner. Other provisions, not conflicting, we think, may be added in writing, or printed; but the conditions of the standard policy itself must remain unimpaired. The condition broken here was one of the conditions of the standard policy. It is claimed that it was waived, not in printing or writing, but by mere word of mouth. Can this be successfully maintained? If so, then this part of the law is at once emasculated. If this be so, then the agent may do, by the merest casual word of mouth, that which neither he nor the company could do by the most formal written stipulation under seal. Such a result cannot be tolerated. The law could be scarcely more explicit in its terms than it is. To our minds, it is clear that since the enactment of this law, at least, the local agent cannot, either in writing or by parol, at the time the insurance is effected, change or waive that provision of the standard policy prohibiting future additional insurance.”
In this case the condition stated in the policy is that it shall be void if the insured did not own the sole interest in fee simple of the lots on which the insured house stood, unless otherwise provided by agreement indorsed on the policy or added thereto. As the insured did not own the sole or fee-simple interest in the land, the policy is void, because an agreement to the contrary was not indorsed on the policy or added thereto. An interest less than the sole or fee-simple interest can be insured, provided a contract to that effect is indorsed on the policy or added to it. No such contract was made or indorsed on or added to the policy in this case.
7. The rules relevant to questions of waiver prior to the enactment of the standard policy law do not apply now. So far as this statute is inconsistent with the common law, it supersedes it.
8. It is the duty of the courts to give effect to the statute, and not to nullify its requirements. This stat
"We consider the case of Finlon v. National Union Fire Ins. Co., 65 Or. 493 (132 Pac. 713), in point, and we follow it. In that case the insured claimed to own the property in question, but really owned only an equity in it. The court held the policy to be void. In this case Oatman and Lane claimed to own a dower right in the land obtained from Mrs. Dement; but Oat-man owned no interest whatever therein, and Lane owned only an undivided one-third of the right of dower therein, and this unassigned dower right was a chose in action only. The policy was issued to Oatman and Lane, and contained nothing to indicate that they did not own the sole fee-simple title to the land on which the house was situated. The policy, so far as it attempted to insure the house, is void.
The standard policy law contains many provisions, but this decision applies to the facts of this case only.
The petition for a rehearing is denied.
Reversed : Rehearing Denied.