
    Ohio Farmers’ Insurance Co. v. Burget.
    
      Word “void" construed in fire insurance policy — Prohibition in policy of removal of chattels insured — Without “consent in writing," etc. — Chattels removed without insurer’s consent and then removed to third 'location with consent — First removal held not to invalidate policy.
    
    1 The stipulation in a policy of fire insurance that “this policy shall, become void, 'unless consent in writing is endorsed by the company hereon if any change takes place in the location of the property,” may become the subject of construction because of the variety of' senses .in which the word “void”'is used.
    2. The terms of such stipulation should be construed with reference to its purpose, and, thus construed, it does not exempt the insurer from liability because of a change in the location of insured chattels without its consent if the hazards of such location are not operative at the time of the loss. 1
    3, The insured may recover upon a policy containing that stipulation for the loss of chattels destroyed at a location to which they were removed with the insurer’s consent, notwithstanding their previous removal to another location without such consent.
    (Decided. October 22, 1901.)
    Error to the Circuit Court of Cuyahoga county.
    Mias Burget brought an action in the court of common pleas to recover of the insurance company upon its policy the value of chattels which had been destroyed by fire during the life.of the policy. By appropriate exceptions to the instructions given to the jury upon the trial the insurer presented as a question of law its liability upon the following state of facts: On the 22nd day of November, 1895, the company executed to Miss Burget its policy on the chattels destroyed, insuring them for three jears. At the time of the insurance the chattels were located at a residence, No. 863 Prospect street in Cleveland. The policy contains the following stipulation: “This policy shall become void, unless consent in writing is endorsed by the company hereon in each of the following instances, viz.: * * * If any change takes place in the location of the property.” About the first of February, 1896, Miss Burget removed from Prospect street to Huron street in Cleveland, taking the insured property-with her. The company had no knowledge of this removal and of course did not consent thereto. On the 3d day of February, 1896, she removed to a residence on Winchester avenue in Cleveland, taking the property with her. The property was there destroyed by fire on the following day. On the 3d day of February she obtained the consent of the company to the removal of the property to the residence on Winchester avenue where it was destroyed.
    Under the instructions given a verdict was returned for the plaintiff and a judgment following the verdict was affirmed by the circuit court.
    
      Lee Elliott and Hile & Horner, for plaintiff in error, cited the following authorities:
    Joyce on Insurance, 1742; May on Insurance, 401a; Joyce on Insurance, 1397; Colby v. Insurance Co., 66 Iowa, 577; Secs. 3664 and 3665, Revised Statutes; Insurance Co. v. Coos Co., 151 U. S., 452; Pence v. Langdon, 99 U. S., 578; May on Insurance, 506.
    
      
      Hart, Canfield <6 Callaghan, for defendant in error, cited tlie following authorities:
    2 Am. & Eng. Ency. Law, 131; Insurance Co. v. Wilkinson, 80 U. S. (13 Wall.), 222; 67 Cal. 36; Walsh v. Insurance Co., 30 Iowa, 132; 27 Wis., 693; Viele v. Insurance Co., 26 Iowa, 9; Haight v. Insurance Co., 92 N. Y., 51; Little v. Insurance Co., 38 Ohio St., 110; Dillebar v. Insurance Co., 76 N. Y., 567; 7 R. I., 502; Behler v. Insurance Co., 68 Ind., 347; 109 Pa. St., 325; Susquehanna Depot v. Simmons, 112 Pa. St., 384; Insurance Co. v. Boyle, 21 Ohio St., 119; Insurance Co. v. Parisot, 35 Ohio St., 35; Howe Mach. Co. v. Woolly, 50 Iowa, 549; Brink v. Insurance Co., 70 N. Y., 593; 34 Wis., 364; 40 Conn., 56; 83 Ill., 453; 88 Pa. St., 230; Insurance Co. v. Burget, 9 Circ. Dec., 369 (17 R., 619).
    
      Dyer, Williams & Stouffer, of counsel for defendant in error, cited the following authorities:
    
      Bennett v. Insurance C., 14 Blatch., 422; Insurance Co. v. Adler, 71 Ala., 516; Insurance Co. v. Boyle, 21 Ohio St., 119; Insurance Co. v. Parisot, 35 Ohio St., 35; Post v. Insurance Co., 43 Barb., 351; Phillips v. Insurance Co., 14 Mo., 220; Owen v. Insurance Co., 57 Barb., 518; Beatty v. Insurance Co., 16 P. F. Smith, 9; 4 Joyce on Insurance, Sec. 3784; Insurance Co. v. Peterson, 66 N. W. Rep., 847; Redman v. Insurance Co., 49 Wis., 431; Gould on Pleading, Chap. 4, Sec. 13; Jacob’s Law Dic., Title of Condition, 440; Mueller v. Insurance Co., 45 Mo., 84; Coburn v. Insurance Co., 145 Mass., 226; 11 Ency. Pl. & Pr., 421, 422; Assurance Co. v. Cooper, 6 Col. App., 25; Insurance Co. v. Hannawold, 37 Mich., 106; Insurance Co. v. Lewis, 18 Ill., 553; Viele v. Insurance Co., 26 Iowa, 9; Williams v. Bank, 27 U. S. (2 Pet.), 102; 41 U. S. (16 Pet.), 509; 2 Joyce on Insurance, Sec. 1747; Hinckley v. Insurance Co., 140 Mass., 38; 1 Phil. Ins., Sec. 575; Worthington v. Bearse, 12 Allen, 382; Phillips on Insurance, Sec. 975; Lane v. Insurance Co., 12 Me., 44; Powers v. Insurance Co., 19 La. (O. S.), 28; 10 La. (N. S.), 23; Overmeyer v. Insurance Co., 43 Mo., 573; Schmitt v. Insurance Co., 41 Ill., 296; Insurance Co. v. McDowell, 50 Ill., 120; Cong. Church v. Insurance Co., 158 Mass., 475; 3 Joyce on Insurance, Sec. 2239.
   Shaitce:, J.

The sound propositions advanced by counsel for the insurance company must be unavailing if the following is unsound: The removal of the property insured from Prospect street to Huron street without the consent of the company rendered the policy wholly void for its entire term, and incapable of further operation except by the subsequent consent of the company with knowledge of that removal. The scope and materiality of this proposition appear from the considerations that the chattels were not destroyed at the residence on Huron street to which they were removed without the company’s consent, but later at the residence on Winchester avenue to which they were removed with its consent; and that when it gave such consent it had no knowledge of the previous removal to Huron street.

A change in the location of insured chattels may increase the hazard or it may diminish it, but the insurer is not required to leave the question of increased hazard to be tried as a matter of defense after a loss. It may by the stipulations of its contract reserve the right to decide that question for itself and to decide it conclusively. That right was exercised by the insurer in this case by the stipulation that the policy should become void if, without its consent, there should be a change in the location of the property. The stipulation is conclusive, but the duration of the avoidance of the policy for which it provides is to be determined by the intention of the parties, as that is evinced by the subject and terms of the contract. A like conclusive character attaches to other stipulations of insurance policies by which the insurer secures exemption from liability. The condition that the policy shall be void if the house which is the subject of insurance should “be vacated or left unoccupied” when broken, was held to be determinative of the rights of the parties and to exempt the insurer from liability, the loss occurring during vacancy. Insurance Co. v. Wells, 42 Ohio St., 519. The same view has been taken of stipulations against liability in cases of the alienation of the title of the insured, of other insurance, of forbidden liens, of increased hazard from repairs, .of the insured property being used in violation of law, of a ship navigating forbidden waters, of the use of the property for more hazardous purposes, of lighting with'gasoline and other like conditions. With respect to all of the conditions enumerated it has been considerately held that the avoidance intended by the stipulation is during, and only during, the existence of the forbidden hazard. The U. S. Fire & Marine Ins. Co. of Baltimore v. Kimberly, 34 Md., 224; Insurance Co. of DesMoines v. Schreck, 27 Neb., 527; Mutual Fire Insurance Co. v. Coatesville Shoe Factory, 80 Pa. St., 407; Obermeyer v. Globe Mutual Insurance Co., 43 Mo., 573; Hinckley v. Germania Fire Insurance Co., 140 Mass., 38; Worthington v. Bearse et al., 12 Allen, 382; Lane v. Maine Mutual Fire Ins. Co., 12 Me., 44. There are numerous other decisions of like import, but these are sufficient for present purposes..

Tlie cases upon tljie subject have been collected by Mr. Joyce in a note to section 2239 of his work on insurance. Some of them are plainly irreconcilable with the view above stated. They are entitled to the most respectful consideration because they are supposed to pay the greatest possible deference to the terms of the contract into which the parties have entered, and to administer merited rebuke to those who would adjudicate with respect to these contracts otherwise than in accordance with the rules generally recognized. They proceed upon the view that to give full effect to the terms used by the parties they must be deemed to have intended that upon any breach of ihe stipulation against an extra hazard, unless the breach is merely temporary, the contract is terminated, and that it cannot again be put into operation except by some act of the insurer which amounts to a waiver of the defense which was made available by the breach. These cases take no- note of the necessity for the construction of such stipulations in view of the variety of senses in which the word void is used. They do, however, by the clearest implication admit that the word is not, in such connections, used in its extreme sense; for, if it were so used, the liability of the insurer could not, after the breach, be revived by mere waiver. The necessity for construction is also impliedly admitted in the attempted distinction between such forbidden hazards as are temporary merely and those which are permanent. For that distinction the terms of the contract afford no basis whatever. If the distinction is made, it must be deduced by construction which applies the terms of the contract to its subject; and, having regard to the reasonableness of conclusions, every hazard is temporary which is not operative when a loss occurs. Any other distinction between temporary and permanent hazards must be arbitrary and quite apart from any supposed intention of the contracting parties.

In this portion of the policy the parties stipulated for the immunity of the insurer from liability on account of losses which might occur during its life. The sole purpose of the stipulation under consideration was to exempt it from liability for a loss which might occur from hazards which it did not have an opportunity to estimate for itself and which it did not contemplate; that is, from hazards not existing at the place where the chattels were when insured or at another to which they might be removed with its consent. The consent of the insurer to the removal of these chattels to the residence on Winchester avenue where they -were destroyed was its election to accept the hazards of that location in lieu of those of their location when the policy was written. The hazards of the location in which the chattels were destroyed were in nowise augmented by the previous removal to Huron street without the consent of the company.

Judgment affirmed.

Jíinsiiall, O. J.; Williams, Bijrkbt and Spkak, J J., concur.

Davis, J.,

dissenting. I cannot accept the postulate of the majority that the “avoidance intended by the stipulations is only during the existence of the forbidden hazard.” That it may be so in some cases I do not deny; but in a case so plainly stipulated for by the "parties such, a qualification cannot be read into the contract. Upon a change of location of the insured property, it is stipulated not that the policy shall become void at the election of the insurer, but that it shall become void. That means that upon the violation of the contract by the insured the policy eo instante becomes absolutely void. Such was the judgment of this court upon a similar policy. Insurance Co. v. Wells, 42 Ohio St., 519. In this case Judge Mcllvaine says: “The cases relied upon as authority to the contrary by the defendant in error involved the construction of contracts materially different from this one. Here no construction or interpretation is needed; the plain and unequivocal terms of the contract must be enforced.” To the same effect are numerous decisions elsewhere, of which Insurance Co. v. Coos Co., 151 U. S. Rep., 452, 464, is a representative case. On the same day on which the decision was announced, this court also held, construing a clause of a condition in a policy identical with the one now under discussion, that a breach of that condition rendered the policy void, not voidable, that is to say, it was held that a transfer of the property avoided the policy. Ohio Farmers’ Insurance Co. v. Waters, 65 Ohio St., 157. The language of this agreement is that the transfer, or the change of location, etc., of the property shall render the policy void.

This being so, the policy became void on the removal of the property from Prospect street to Huron street, without the knowledge or consent of the insurer; and it is settled law that “if the policy has become forfeited or void for any cause, it cannot be renewed or 'revived except there is a waiver or estoppel arising from the acts or statements of the company or its authorized agent; or unless there is an express agreement to revive.” Joyce on Insurance, sec. 1467.

It does not appear from the record in this case that at .the time the insured property was removed from Prosriert street to Huron street the insurer intended to move to Winchester street, nor that the repose at Huron street was merely temporary; and it is conceded that if a loss had occurred while the property was at Huron street the insurance company would not have been liable. If the theory of the law which I have presented is correct, the policy was at that time void, not merely voidable. But it does appear that the insured knew of this provision of he contract making the policy void, because she applied for the company’s consent to the removal to Winchester street and concealed the fact that she had already removed the goods from Prospect street to Huron street, which would avoid the policy. At all events, there is an utter failure to show any waiver of its rights by the company, with knowledge of the facts, much less an agreement to revive the policy. I therefore am of the opinion that the judgment of the circuit court should be reversed.  