Enos v. Sun Insurance Co.

Foote, C. Action on a fire insurance policy. The plaintiff had judgment for the amount claimed; the defendant moved for a new trial, which was denied. From the order made therein and the judgment, an appeal was taken. The case was tried by a jury.

One of the questions involved in it was, whether or not the fishing scow, which was insured, was in the policy of insurance included in the word “ building,” and thereby affected by all the terms and conditions of the policy as a building. The' [622]defendant contended that it was so included, and that therefore it being unoccupied both at the time it was insured and at the time it was burned, the plaintiff could not recover.

Another was whether or not the scow belonged at the time the policy was issued, and it was burned, to the plaintiff, or to one Valine. - .......

The policy in question, among other things, contained the following clauses:—

- “First—The assured covenants that every fact and circumstance affecting the risk or hazard adversely to this company has been fully made known to the company.

“Second—That this company shall not be bound by any act or statement Avhich is not contained in the written application, or indorsed on this policy.

“ Third— Waiver. The use of general terms or anything less than a distinct, specific agreement, indorsed or attached to this policy, shall not be construed as a waiver of any printed or Avritten condition or restriction herein.

“ Fourth—Conditions voiding this policy, without written permission indorsed hereon, or stated in writing in the application for this insurance, .... or if the above-described building or buildings, or either of them, noAV are, or shall become vacant or unoccupied.”

According to the second clause, it seems that the Sun Insurance Company, in its contract with the insured, had expressly exempted itself from being bound by “ any act or statement ” not contained in the application for the policy, or indorsed on' said policy. Hence no notice to its agent as to anything different from Avhat the policy and application contained would bind the company, and the defendant’s instruction Ho. 4 on this •point asked should have been given;

Instruction No. 3 should have been granted, as the local agent according to the terms of the policy could not, as claimed, waive any of the provisions of the policy; it could only be done by writing on it or the application. (Shuggart v. Lycoming Fire Ins. Co. 55 Cal. 408-413; Gladding v. Ins. Assoc. 66 Cal. 6; McCormick v. Springfield Fire Ins. Co. 66 Cal. 361; Silverberg v. Phœnix Ins. Co. 67 Cal. 36.