This action was commenced in the Knox Circuit Court on the insurance policy issued by appellee to appellant in the sum of $1,000.00. To the complaint, a demurrer was filed and ovеrruled. The defendant then answered in six paragraphs. The first was a general denial.
The plaintiff demurred severally to the second, third, fourth, fifth, and sixth paragraphs, which demurrer was sustained аs to the sixth, and overruled as to the others. The plaintiff replied to the second,
The policy is set out in the complaint and contains the following provisions:
“If the interest of the insured in the property be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the assured, or if the building stands on ground not owned in fee simple by the assured, it must be so expressed in the written part of the policy, otherwise the policy shall be void.
“This policy shall be void * * * if the intеrest of the assured in the property, whatever that interest may be, is not truly stated in the policy.
“This policy shall become void in each of the following instances, unless consent in writing of the company is endorsed hereon, viz.: If the assured, or any person having an insurable interest in the property, shall now have, or shall hereafter make, any other insurance оn the property hereby insured, or any part thereof, whether the same be valid or not.”
The second paragraph of the answer alleges that after the issuance of the policy in suit, plaintiff procured on the same property insurance, from the German Insurance Company, of Freeport, Illinois, in the snm of $700.00, without the consent in writing of the defendant company, endorsed upon the policy sued upon, which said policy, issued by the German Insurance Company, was, and still is valid. Counsel for appellant contend that this paragraph is fatally defective, because it does not aver that consent of the company for other insurance was not given in any other manner than in writing, and does not negative the
To this proposition we cannot assent. Such a provision in a policy, as has often been stated by the courts, is for the benefit of the insurеr to protect the company from the hazard of overinsurance. The law will not presume that the defendant waived a provision intended .for its protection. Such condition may be waived as held in Moffit v. Phenix Ins. Co.,
In the cases in which the question of waiver is passed upon, as a rule, avеrments of facts claimed to constitute waiver are set out, either by way of reply to answer, pleading the breach of condition, or in the complaint
, The matter set up in thе paragraph of answer was such as in terms avoided the contract of insurance. Plaintiff in effect rendered it voidable and the waiver of the forfeiture was a proper subject of reply.
The third paragraph of answer alleges prior insurance without notifying defendant company, and without procuring its consent endorsed on the policy. The objections to the second and third paragraphs are substantially alike, and the same authorities and reasoning apply to both. It is further urged that the allegation, “that the plaintiff procured to be issued to her a policy of insurance, is not equivalent to an allegation of delivery to, and acceptance of such policy by the plaintiff.” Conceding the learning of counsel, we think they are in error in this interpretation. A
The fourth paragraph of answer alleges that the plaintiff does not own the entire interest in the property insured, but that one James Sisk owned the one undivided half thereof at the time said policy was issued.
The objection urged to this paragraph is that it does not aver facts showing no insurable interest in the property.
In support of this proposition counsel in their able brief cite Imperial Fire Ins. Co. v. Dunham, 117 Pa. St. 460,
Imperial Fire Ins. Co. v. Dunham, supra, was a case in which the holder of the policy was the purchаser, under articles, of the land upon which stood the property insured. The court held that the policy was not void, upon the ground that he was the equitable owner in fee, and, in resрect to the insurance, the entire, unconditional, and sole owner;, that, when articles are entered into for the sale of land, the purchaser is considered the owner.
In Knop v. National Fire Ins. Co., supra, the insured held the property under contract of purchase; and in Carpenter v. German American Ins. Co., supra, the court held that the provisions of the policy were waived by
In Cross v. National Fire Ins. Co., supra, and Carpenter v. The German American Ins. Co., supra, and Van Schoick v. Niagara Fire Ins. Co., supra, it is held that the policies were not avoided, although the insured did not own the entire and sole interest in the property, because the agents soliciting the insurance and issuing the policies had knowledge of the facts as to the titles of the insured; that their knowledge was the knowledge of their principals, and that the circumstances attending the issuing of the policies amounted to a waiver of the condition in question.
In Philadelphia Tool Co. v. British-American Assurance Co., 132 Pa. St. 236,
If the court in that case was justified in holding that the policy was issued with knowledge of the interest the insured held in the real estate in which its business was being carried on, the assumption that the insured in the сase before us owned only an undivided interest in the household goods described in the policy, and that the defendant had knowledge of that fact, we think would not be warranted.
Counsel сite a number of authorities, to the effect, that whenever loss may be sustained, an insurable interest exists. This proposition is not questioned; but it is also true that, unless a statement of interest is
Judged by these decisions, the fourth paragraph of the answer is sufficient.
The fifth paragraph alleges that the property became very wet from the watеr thrown thereon to extinguish the fire in the building where the same was situate; that the plaintiff used no endeavor to dry or clean the same, but suffered it to remain in that condition; that if it had been рroperly cared for the damage thereto would not have exceeded $100.00. It admits a damage occasioned by the fire of $100.00, and is pleaded only as a defense to the amount claimed in excess of that sum.
We find no error in the rulings of the court below.
Judgment affirmed.
Robinson, J., took no part in this decision.