
    The Germania Fire Insurance Co. v. Werner. Home Insurance Company v. Milligan.
    
      Words “any change increasing the risk," interpreted — Do not apply to the corpus of insured building, when — Section 3643, Revised Statutes — Vacancy of the property without knowledge of the insurer — Makes recovery under the policy void — Insurance law —Law of contracts.
    
    1. The words “any change increasing the risk,” which occur in Section 3643, Revised Statutes, refer only to change in the insured building or structure itself, and were not intended to include or apply to anything distinct from, or accidentally related to, the corpus of the insured building or structure.
    2. Where one of the conditions of a fire insurance policy is that if the building insured' shall become vacant, unoccupied or uninhabited, without the consent of the insurer, the policy shall be void; and where such building becomes vacant after the policy was issued, without knowledge or consent on the part of the insurer, and a fire occurs therein while the building is vacant, there can be no recovery under the policy. Insurance Co., v. Wells, 42 Ohio St., 519, approved and followed; Moody v. Insurance Co., 52 Ohio St., 12, overruled.
    (No. 9973
    Decided June 27, 1907.)
    Error to the Superior Court of Cincinnati.
    (No. 10099
    Decided June 27, 1907.)
    Error to the Circuit Court of Muskingum County.
    
      . Both' of these cases were actions to recover for loss by fire and upon,policies of insurance containing .stipulations as stated in' the opinion. In both cases- the court charged the jury that the insurance company must prove not only vacancy or occupancy different from that provided • in the policy but also an increase in the hazard because of such unoccupancy or change of occupancy; and also refused to instruct the jury, as requested, to the effect that the jury must find for the defendant if the premises were not occupied at the time of the fire.' The plaintiff recovered in each case. The judgment in the first case was affirmed in the superior court in general term and in the second casé the judgment was affirmed by the circuit court and these actions are prosecuted to reverse the judgments of the courts below.
    
      Mr. Hartwell Cabell and Mr. J. L. Kohl, for plaintiff in error in case No. 9973.
    The words of the policy “while occupied as a store and dwelling” (a) limit the time during which the risk assumed by the insurer- runs, and are not a part of the description of the property covered, (b) They make it necessary that the assured show that she suffered a loss during the time the building was occupied in the manner they provide for before she can recover, (c) Being no part of the description of the property, the application of Section 3643, Revised Statutes, known as the “Howland” or “Valued Policy Law,” is not involved.
    Contracts of ■ insurance, like other contracts,, must be construed to give effect ‘to the intention and express language of the parties. Insurance Co. v. Myers & Co., 62 Ohio St., 529; Cooley Briefs on Insurance, 637; Langworthy v. Insurance Co., 85 N. Y., 632; Ripley v. Insurance Co., 16 Wall., 336.
    It is a fundamental principle of the law - of contracts that a party to an agreement can not recover under the same unless he plead and prove the contract, and that his claim is within its terms.
    It is well settled that a written instrument attached to a pleading under Section 5085, Revised Statutes, is not properly a part of the pleading, even if incorporated in it by words of reference. Crawford et al. v. Satterfield, 27 Ohio St., 421; Byers v. Insurance Co., 35 Ohio St., 606.
    And while a contract pleaded in this manner may be well pleaded as against demurrer, the rule requiring that the proof conform to the allegations of the pleadings is none the less effective.
    It therefore follows that if the written instrument offered in evidence differed substantially from the contract alleged, it was prejudicial error to admit it. Hill v. Supervisor, 10 Ohio St., 621; Thatcher v. Heisey, 21 Ohio St., 668; Dean v. Yates et al., 22 Ohio St., 388; Powers v. Insurance Co., 68 Vt., 390; Cooledge v. Insurance Co., 67 Vt., 14.
    Section 3643, Revised Statutes, it will be observed provides that “a full description” of the building or structure be made by the agent of the company. It imposes no duty to examine into the title, encumbrances, other insurance, use and occupancy or contents of the building.
    Counsel for plaintiff in error then cited and! commented upon the following authorities: Web
      
      ster et al. v. Insurance Co., 53 Ohio St., 558; Insurance Co. v. Webster, 7 C. C., 511; Ostrander on Fire Insurance, 3d Ed., 510; Endlich on Interpretation of Statutes, Sec. 329; Insurance Co. v. Wells, 42 Ohio St., 519; Insurance Co. v. Bowersox, 5 C. C., 444; Insurance Co. v. Leslie, 47 Ohio St., 409; Moody v. Insurance Co., 52 Ohio St., 12; Insurance Co. v. Russell, 65 Ohio St., 230.
    
      Mr. G. W. Hengst and Mr. L. M. Mongan, for - defendant in error in case No. 9973.
    This court has held that this section is considered a part of every insurance policy and that any stipulation in a policy which was contrary to this statute was void. Insurance Co. v. Russell, 65 Ohio St., 230.
    This court also held that Section 3643, Revised Statutes, prevents the insurance company from claiming that the vacancy is a defense whether the policy provides so or not. That there must be' an increase of the risk in addition to the “vacancy” or other change in property, to enable the insurance company to avoid payment for the loss. Insurance Co. v. Moore, 52 Ohio St., 607; Insurance Co. v. Clark et al., 53 Ohio St., 414; Retterer v. Insurance Co., 55 Ohio St., 635.
    The above cases settle the question beyond any doubt.
    All these decisions support our contention that neither “vacancy” nor “change of occupancy” will avoid the policy, that there must be in addition to “vacancy” or “change” an increase of risk. Vacancy is not per se an increase of risk. Richards' on Insurance, 166; May on Insurance, 4th Ed., Vol. 1, Sec. 249; Becker v. Insurance Co., 48 Mich., 610.
    In Insurance Co. et al. v. Baldwin, 62 Ohio St., 368, “premises occupied and to be occupied by tenant as private dwelling,” was held to be merely a description of the property and the court held that the question to be tried was whether the non-occupancy of the building increased the risk. In the Insurance Co. v. Kiernan, 83 Ky., 468, the policy read “occupied as a family residence” and by a subsequent condition, the policy was to be void if the property became' vacant, held that this was' a representation as to the present condition, and an agreement that 'it would remain so, and was not material unless the change increased the risk. ' Their statute is similar to ours, and this case was cited- and approved by our Supreme Court in case of Moody v. Insurance Co., 52 Ohio St., 12.
    
      Mr. I. W. Mooney, for plaintiff in error in case No. 10099.
    The question presented, by the court’s charge is, does vacancy in itself avoid the policy, or is it necessary to allege and prove in addition to vacancy the hazard was increased by reason thereof. The trial court in its charge saw fit to follow the case of Moody v. Insurance Co., 52 Ohio St., 12. The conclusion reached by the court in this case is violative of the established rules of interpretation, and is in direct conflict with the decision of this court in the case of Insurance Co. v. Wells, 42 Ohio St., 519. In the case of Insurance Co. v. Wells, supra, this court held that a similar stipulation to that contained in the policy sued upon was absolute and avoided the policy.
    The policy of insurance sued upon in the case of Insurance Co. v. Wells, was issued, after the legislature had enacted what is familiarly known as the “Valued Policy Law,” or Section 3643, Revised Statutes.
    The case of Insurance Co. v. Wells, supra, being in direct conflict with the case of Moody v. Insurance Co., it becomes the duty of this court to affirm one of these cases and overrule the other. The statute then provides in the absence of any change, meaning thereby any change in the building itself, increasing the risk without the consent of the insurers, the insurer shall be liable for the face of the policy, in case of total loss. It is evident that the words “any change increasing the risk,” relates entirely to the physical condition of the building, and not to. occupancy, liens or mortgages.
    The court in the case of Insurance Co. v. Webster, 7 C. C., 511, construed Section 3643, and limited the words, “any change increasing risk,” to the physical condition 'of the building. The opinion of the circuit court in the above case was affirmed by this court in the case of Webster et al. v. Insurance Co., 53 Ohio St., 558.
    Section 3643 was considered by this court in the case of Sun Fire Office v. Clark et al., 53 Ohio St., 414, holding that a stipulation contained in a policy providing the same shall become void if the assured should take additional insurance, -without consent of the company, is not within the provision of Section 3643, Revised Statutes.
    „. The opinion of the'.court in .the case of Insur
      
      ance Co. v. Russell, 65 Ohio St., 230, is illustrative of the inclination to extend and enlarge the effect and operation of the statute, while, the dissenting opinion in the same case, gives to the section its natural and proper construction, without any effort by enforced construction to enlarge its operation. We heartily concur, in the dissenting opinion in the case of Insurance Co. v. Russell, supra.
    
    Proofs of loss must be furnished within the time provided by the terms of the policy^ unless waived during such time by the insurer. Insurance Co. v. Lindsey, 26 Ohio St., 348.
    The uniform rule' is, “there can be no waiver unless at the time of its exercise, the right or privilege waived, was in existence.” There can be no waiver of a right that has been lost. A waiver is an intentional relinquishment of a known right. 29 Am. & Eng. Ency. Law, 2d Ed., 1092; Investment Co. v. Merrill, 108 Cal., 490; Insurance Co. v. Thomas, 82 Fed. Rep., 406; Insurance Co. v. Frederick, 58 Fed. Rep., 144; Gould v. Insurance Co., 134 Pa. St., 570; Everett v. Insurance Co., 142 Pa. St., 332; Beatty v. Insurance Co., 66 Pa. St., 9; Lantz v. Insurance Co., 139 Pa. St., 546; Arthur v. Insurance Co., 78 N. Y., 462.
    
      Mr. S. M. Winn and Mr. I. C. Bassett, Ir., for .defendant in error in case No. 10099.
    The trial court evidently decided in its mind two propositions before delivering the charge to the jury.
    1. There being no dispute as to the fact-of vacancy, that it was a question, of law for the court to say to the jury that it was .vacant,, and
    
      2. That vacancy merely within itself- did not make the policy void, but only voidable to be determined by the question of whether or not the risk was increased by reason of the vacancy; and as to whether that risk was or not increased was a question of fact which must be submitted to the jury for its consideration and determination as evidenced by a part of the court’s charge.
    It is apparent from the charge of the trial court that the court followed'the case of Moody v. Insurance Co., 52 Ohio St., 12, and gave to the holding in that case the construction which we contend was the proper construction and settled law of Ohio. The policy in this case contains what is designated as “vacancy clause.”
    There are numerous cases which take note of the necessity for construction of such stipulation in a policy in view of the variety of senses in which the word void is used. Insurance Co. v. Burget, 65 Ohio St., 124.
    Counsel for plaintiff in error in his brief undertakes to quote from the language of the court, speaking through Judge Spear, in the case -of Webster v. Insurance Co., 53 Ohio St., 568, and quoting . from a part of a language adopted by Judge Spear as to the construction of Section 3643, Revised Statutes.
    We contend that this authority conclusively settles the question as against the position taken by counsel for plaintiff in error. The use of the property is a physical condition. It is a condition which can be seen when examined by the agent of the company. It is not one of record or one which would require the examination of records on the part of the agent, and in addition to that, the court in that case expressly excepts from the operation of the statute as being^ a change in respect .to incumbrances, and also it has excepted from' the provisions of the statute the obtaining of other insurance without the knowledge of the insurer and without his written consent.
    The claim of the plaintiff in error, and practically the only one urged is, that under the provisions of the policy that the mere fact that the property became vacant avoids the policy.
    Counsel for defendant in error further cited and commented upon the following authorities: Insurance Co. v. Leslie, 47 Ohio St., 409; Insurance Co. v. Hull, 51 Ohio St., 270; Sun Fire Office of London v. Clark et al., 53 Ohio St., 414; Insurance Co. et al. v. Baldwin, 62 Ohio St., 368; Insurance Co. v. Drackett et al., 63 Ohio St., 41; Retterer v. Insurance Co., 55 Ohio St., 635; Insurance Co. v. Wells, 42 Ohio St., 519; Insurance Co. v. Russell, 65 Ohio St., 230.
   Davis, J.

These cases have in common one point, which is decisive of each case. In one of the cases the policy provides that if a building1 therein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days, the entire policy shall be void, unless otherwise provided by agreement indorsed thereon or added thereto. At the time of the fire and for more than ten days previous thereto, the premises were wholly unoccupied without the knowledge of the insurer. In the other case the policy provides that if the premises described therein shall become vacant, unoccupied or uninhabited without written' consent thereon; the policy shall be null and void. The building described in the policy was not occupied when the fire occurred nor for a considerable time before. Both cases are therefore controlled by Farmers’ Ins. Co. v. Wells, 42 Ohio St., 519, unless a change of occupancy amounting, to a vacancy is within the words, “any change increasing the risk,” occurring in Section 3643, Revised Statutes.

So much of the section as is material to the present purpose is as follows: “Any person * * * hereafter insuring any building or structure ■against loss or damage by fire or lightning, * * * shall cause such building or structure to be examined by an agent of the insurer, and a full description thereof to be made and the' insurable value thereof to be fixed by such agent; in the absence of any change increasing the risk without consent of the insurers, and also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned- in the policy * * * shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid * * *.”

This enactment was passed March 5, 1879 (76 O. L., 26), and the policy which was sued on in Insurance Co. v. Wells, supra, was issued a year and a half after the passage of this act and was clearly governed thereby, if the statute covers such a case. It is not discoverable, however, that any reference was made to the statute by counsel or court, at any stage of the case, through several years of litigation. Inasmuch as the able counsel and the judges of the several courts must be presumed to.have known of the existence of the statute, the inference is very strong that it was conceded all around that the statute did- not apply to the facts of that case. Yet, since the reason for the silence of this court upon that point can only be conjectural, the question here still remains with us. The ruling in Insurance Co. v. Wells, however, stands unquestioned and unqualified, except inferentially in cases hereinafter commented upon..

Proceeding now to a construction of the statute it will be noticed that it first, distinctly and without any ambiguity whatever, provides what may be required by “any person hereafter insuring any building or structure.” Pie “shall cause such building or structure to be examined by an agent of the insurer.” It is not required that the examination shall extend to the uses, purposes and surroundings of the “building or structure,” nor to ownership, incumbrances, possession of exposures of the “building or structure;” for if we may go outside of the explicit language of the .statute for one thing, we may for all. The information to be acquired by such an indefinite and extended examination may be valuable, and even necessary, in some aspects of the contract of insurance; but the purpose of the statute is satisfied when the examination is limited to the thing to be insured, that is, the “building or structure,” and when the insurer’s agent has made a full description.and fixed the insurable value “thereof,” that is, of the “building or structure.” Now we come to the latent ambiguity of the statute, an ambiguity which disappears entirely if we keep in mind the sole purpose of the statute, to fix a value on the. insured “building or structure” which should be unquestionable in case of a total loss and without regard to any other controversies which might arise between the parties to the contract. “In the absence of any change increasing the risk -vyithout consent of the insurers, * * * in case of total loss, the whole amount mentioned, in, the policy * * * shall be paid,” says the statute. Any change in what? Manifestly, in the “building or structure” which is insured and valued, because only that is the subject-matter of the- statute and of the whole sentence in which the phrase “any change” occurs. “All words of a general nature not express and precise are to be restrained unto the fitness of the Subject-matter or the person.” Steamboat Messenger v. Pressler, 13 Ohio St., 255, 262.

Considerations similar to these have led this court to hold that a stipulation in a policy that it shall become void by the taking of additional insurance without the consent of the insurer, and a stipulation that a policy shall become void if any part of the- property insured shall be incumbered by mortgage without the consent of the company, are not within the provisions of Section 3643, Revised Statutes. The Sun Fire Office of London v. Clark et al., 53 Ohio St., 414; Webster et al. v. Dwelling House Ins. Co., 53 Ohio St., 558. The ground of these judgments was admirably stated by Minshall, J., in the first case cited here, as follows : “This examination relates only to the physical condition of the property, and, therefore, by the ordinary rules of construction the general language immediately following should be limited to a change in such things as come within the purpose of the examination. So interpreted, they can mean no more than that, in the absence of any change in the physical condition of the property increasing the risk the full amount of the insurance shall be paid in case of a total loss. If it had been intended to enlarge the meaning so as to embrace other matters made material by the terms of the policy, more apt words could and, as we think, would have been used. The language woúld have been so introduced as not to be naturally restrained by the context to a more limited meaning.” But it was also said in that case that: “A careful reading of the statute will disclose, as we think, a simple purpose on the part of the legislature to limit it to such matters connected with the physical condition of the property — its value, structure and surroundings, as might.have been discovered in the examination required to be made;” and in the other case it was said by the judge who delivered the opinion of the court that “the change referred to in the statute relates to some physical change in the insured building, its use or its surroundings” etc. See p. 568. Now, as we have already said, we see no warrant in the statute for extending its terms over anything else than the “building or structure” which is the subject of'the insurance; and we think that we have demonstrated that the statute was not intended to include or apply to anything distinct from, or accidentally related to, the corpus of thé insured building. We, therefore, think it unfortunate that these able judges did not speak on this subject with their usual close discrimination;’ otherwise we might not have been called upon to review the subject now. Those cases, however, ended in proper judgments, as we think it must be conceded; and. if covenants such as those are not annulled by the statutes, where shall the line be drawn? It was.argued in the above' quotation from The Sun Fire Office of London v. Clark, supra, and in an opinion by Laubie, J., in 7 C. C., 511, 519, et seq, to which special reference is made in Webster v. Dwelling House Ins. Co., supra, that if it had been intended to enlarge the meaning of the precise words of the statute so as to embrace other matters made material by the agreement of the parties, it would have been more natural to have said so definitely and directly. That' seems to be sound reasoning, and if true, then the conclusion would seem to follow that the legislature meant what it said, and no more; and it would also seem to follow, conversely, that if the courts may stretch the words, from their obvious meaning of any change in the building or structure, to any change in the occupation of the building, then there is no limit to such judicial legislation as would eliminate every condition of the policy relating to title, possession, incumbrance, over-insurance, use, occupation, and the like. We can not think that the legislature ever intended, to be so interpretéd.

The courts below in both cases now before this court followed the case of Moody v. Insurance Co., 52 Ohio St., 12. The reasoning in support of the final judgment in that case is peculiar and, it seems to us, unsatisfactory. On the point now under consideration, the opinion occupies less than a page and is, in substance, as follows: “The statute being in force when the policy was issued, became a part of the contract of insurance, and controls its construction and operation.” It is undoubtedly true that the statute controls according to its intent and meaning. , “The condition of the policy in regard to the occupancy is therefore so qualified by the statute, that, in the absence of intentional fraud on the part of the insured, to make the change from occupancy, to disuse or want of occupancy available as a defense, it must appear that the risk was increased.” With all respect, we are unable to see that the conclusion follows the premises. Insurance Co. v. Leslie, 47 Ohio St., 409, is cited to support the conclusion and we will examine it presently. The opinion continues: “It is well settled that the risk is not necessarily, or prima facie increased, by the insured property becoming vacant or unoccupied (citing authorities). And, therefore, when the insurer pleads such change as a defense to an action on the policy, the answer must allege that the risk was increased on account of it, unless the insured was guilty of fraud.” That is the whole reasoning-, upon this point; and the last “therefore” might be accepted as valid, if it had been first shown that ‘such change” was within the meaning of the statute.

We now take up Insurance Co. v. Leslie, 47 Ohio St., 409, which seems to have been relied upon as the chief corner-stone of Moody v. Insurance Co. Since no reason was given for the ruling in Moody v. Insurance Co, except a reference to this case we have looked through .it carefully for some attempt to show that the words of the statute, “any change” mean any change whatever, in the broadest sense, instead of any change in the building or structure; but we have looked in vain.. The construction is dogmatically announced,” p. 415, without any attempt at elucidation. After a-statement of the substance -of the statute, the- fot-. lowing unsupported declaration is made: “If, after the policy is issued there be any change in the condition or surroundings of the property which increases the risk, without the consent of the insurer, or, if there be intentional fraud on the part of the insured, these are regarded by the statute as matters of substance and may defeat a recovery on-the policy.” This is substantially all of the opinion in the Leslie case on this point; and the syllabus is no clearer than the statute, for it is in the same language as the statute. It reads as follows: “The more effectually to- accomplish these results, the statute holds the company liable on its policy, unless, after its issue, a change occurs increasing the risk ’’ etc. Against this we must place the same query which arises upon a reading,of the words of the statute. A change in what?

We have; been referred also to The Milwaukee Mechanics’ Ins. Co. v. Russell, 65 Ohio St., 230. That case was decided on the points stated in the syllabus, all the judges concurring; but it must be apparent from the report that at least half of the members of the court did not concur in all-that was said in the opinion by Williams, J.

The citation of cases which have been decided upon the authority of Moody v. Insurance Co., is beside the question. The question clearly presented here is, whether, in view of Section 3643, Revised Statutes, Insurance Co. v. Wells, 42 Ohio St., 519, controls these cases, or whether they must be decided according to Moody v. Insurance Co., 52 Ohio St., 12. Our- conclusion is, for the reasons stated, that the law as stated in Insurance Co. v. Wells has not been qualified by the statute, and that Moody v. Insurance Co. must be overruled.

The judgments below are reversed and judgment for the plaintiffs in error.

Si-iauck, C. J., Price, Crew and Summers, JJ., concur. Spear, J., dissents.  