
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    THE OHIO FARMERS’ INSURANCE COMPANY v. E. L. BURGET.
    
      Fire insurance — Temporary removal of goods to other place—
    
    (1). Where goods insured are removed temporarily for some reason from the place where they were insured to another place, and then returned to the place where they were insured, where after-wards they are destroyed by fire, the company is liable for the loss.
    
      Same — Verbal assent of agent where writing required — Liability—
    (2). Where the policy provides that the policy shall be void if the goods are removed to another place without the consent, in writing, by the company, and the goods are removed with the verbal consent of the agent, who tells the party to come in after-wards and the policy would be fixed, but the goods are then destroyed before the written consent of the company is endorsed on the policy, the company is liable for the loss, notwithstanding the provision in the policy that its agents are not authorized to waive any of the conditions of the policy.
   Maevin, J.

The oase of the Ohio Farmers’ Insurance Co. v. E. L. Burget, is brought here upon a petition in error to the court of common pleas.

The suit was brought in that court by E. L. Burget, to whom the Farmers’ Insurance Company had issued a policy of insurance upon certain household goods owned by the plaintiff below. The policy was issued on November 22, 1895. At the time the policy was issued, the goods were in a house at No. 863 Prospect street in the city of Cleveland. Subsequent to the issuing of this policy, it was left until after the fire ooeurred by which the property was destroyed, with the agents King & Reed, by whom it was issued.

The assured, in February, 1896, removed to another part of the city, taking these goods to Winchester avenue. Shortly before moving to Winchester avenue, a portion of the goods, insured were removed fcr a few days and kept at a house on Huron street, and thereafter removed on February 4, 1896, to the house on Winchester avenue, and the fire occurred on the night of that day, resulting in the destruction of the property or a part of it, and, because of that state of acts, suit was brought and recovery was had.

It is said that there was error in the trial of the case; error in the overruling a motion for a new trial which was filed. .

The errors complained of consist chiefly in that the court allowed a recovery to be had notwithstanding a clause in the policy, which clause reads:

“If the assured is not the sole and unconditional owner of the property; or if any building intended to be insured stands on ground not owned in fee simple by th9 assured; or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, is not truly stated in this policy; or if any change takes place in the title, interest, location or possession of the property (except in case of succession by reason of the death of the assured,) whether by sale, transfer or conveyance in whole or in part, or by legal process of judicial deoree, or if this policy be assigned or transferred before loss, this polioy shall become void, unless consent in writing is endorsed by the company hereon. ’’

Thera was no consent in writing on the part of the company, that the location of these goods might be changed.

It is said that by reason of this clause in the policy and the fact that a change of location was .made and no written consent entered upon the policy,the policy became void. It is urged that the polioy became void immediately upon the removal of the goods from No. 368 Prospect street to Huron street. That, from the evidence, was clearly a temporary removal. The goods were not destroyed while on Huron street. It probably would hardly be claimed, at least it could not, as I think, be successfully maintained that if the goods for some reason had been removed to Huron street for a few days and then returned to No. 863 Proapect street and there destroyed by fire, that the company would not be liable; but the simple removal to Huron street and then taking back to the place where they were when the policy was issued, would not invalidate the policy and release the company from liability.

It will be found on examination of the authorities, that where there is a provision in the' policy that where the premises insured become vacant the policy will become void, it is only in the case where the fire occurred during the time the property is thus vacant, that the company .is relieved from liability.

So far as I have seen, in each case where a recovery’ has been denied on the-ground that the clause in the policy providing that if the premises shall become-vacant the policy shall become void, it is where the fire occurred during such vacancy; and the same reason would seem to establish the preposition that it could be only in the case that the property had been destroyed on Huron street, that the liability on the part of the company could be evaded because of such removal to that street.

The plaintiff, Burget, as is testified to both by herself and by Reed, called at the office of King & Reed, the agents -from who this policy vas obtained, to whom application was made and who, by the terms of the policy must sign it before it is valid. She represented on the day that she moved to Winchester avenue, to that office, to Mr. Reed, that she would move that day. She says she had expected to move, but said nothing about having her goods stored at Huron street. She says she expected to move unless prevented by reason of storm. In fact, she did move that day. She testifies that Mr. Reed said to her when she said that she was about to move, “Very well, we will take oare of you,” or “You ccme in and we’ll fix your policy for you’ Mr. Reed says she stated that she was about to move, and he said he would have to examine the place and determine what todo, but the jury evidently believed she told what occurred, and that Mr. Reed was mistaken. But it is said that the language of the policy is such, even if that did occur and if Reed gave her to understand by his language that the policy would be continued in force, still he could not waive on behalf of the company this provision’in.the policy.

Exception is taken to the charge of the court on the right of the agent to waive this provision of the polioy and the right, to have the change made except it be endorsed in writing. In regard to this matter the court said:

“If this property was destroved by fire on Winchester avenue, and if this is the same property described in this policy of insurance, and if its removal there was with the approval of the agent cf this company; that is, if what occurred at the office of this company amounted to an assent of the company to have this property covered by the policy in its new location on Winchester avenue, so that it was in fact covered by this policy, we think that the fact that in the progress of moving it, it was for a day or more kept at some house on Huron street, would not have the effect to prevent, recovery in this case, and would not be a material fact in this case, so far as its determination by the jury is concerned.”

That was excepted to. What has already been said shows we do not understand that there was any error in this language of the charge.

On the question of the consent tc the removal which is complained of, the court said:

“It was the right of this company, to render it liable under this policy, tc haye endorsed in writing on the policy the consent of the company to a change, before liability would arise under the policy, growing out cf a fire occurring and at changed locality. It had the right, I say, to have this in writing; but that if the agent of this company, in substance, iufcrmed the plaintiff that she might make this change, and that this endorsement on the policy could be made later, that she might bring the policy in at some time for the purpose of having this endorsement made, that would constitute a waiver on the part of the company to have that endorsement in writing on the policy before the change was made. So that it becomes important then, and becomes a question of fact for your determination, what occurred between the agent of this company and this plaintiff the morning of the day, or the morning she called concerning this removal.”

Now it is urged that this was error, because the agent under the terms cf this policy could not make such a waiver. We think there was no error in that charge, and that the court was fully justified in what was said by what is said in vcl. 11 of the American & English Encyclopedia of Law, (old edition,) 131, and the authorities there cited. Also 13 Wal., 222; 67 Cal., 36; Walsh v. Aetna Life Ins. Co., 80 Iowa, 133; 27 Wis. 693; and especially by the case of Niele v. Germania Life Ins. Co.,, 26 Iowa, 9.

The condition in this last lease was that if the risk be increased by a change of occupation, etc., (it was a building that was insured), without written consent, the policy should be void. It was held that the agent who had the authority to issue the policy and take the premium, might waive the provision and a recovery be had.

The fourth clause of the syllabus reads: “A condition in a policy of fire insurance, that if the risk be increased by a change of occupation or other means within the control of the assured without the written consent of the insurers the policy shall be void; being inserted for the benefit of the insurers, they may dispense with a compliance therewith or waive a forfeiture of the policy incurred by a breach thereof, and thereby become estopped from setting up such condition or breach in an action for a loss subsequently occurring.”

The fifth clause reads: “And such waiver of the forfeiture arising from the breach cf the condition need not be in writing, but may be by parol, at least in a case where the policy is not attested by the corporate seal of the company, and is hence not a specialty.”

The eighth clause reads: “A local agent of a foreign insurance company, clothed with authority to effect contracts ’ of insurance, to fix rates of premium, to give consent to the increase of risks and change of occupation of buildings insured, to cancel policies on account of increase of risk, and exercise supervision over the property covered by policies issued at his agency, has power to dispense with conditions and waive forfeitures arising from a breach thereof, in the absence of any limitation upon his authority known to the assured. ’ ’

The ninth clause reads: ‘‘The foregoing powers are necessary incidents cf the general authority of the agent to effect contracts of insurance,-conduct the business at his agency, and do all things necessary and proper in the prosecution thereof.”

These several propositions are thoroughly reasoned out in an elaborate opinion in the case, prepared 'by Mr. Justice Beck, and his opinion is followed by a very' valuable note prepared by John N. Rogers, Esq. Other authorities are to the same effect, and we think fully justify the position that a waiver may be given by the agent so that the company may be bound notwithstanding the clause in this policy.

Another error complained of in this case is that the conditions as to the proofs of loss were not complied with.

The plaintiff testifies that she made out proofs of loss and sent them by mail to the company; the officers of the company testify such proofs were never received.

A witness by the name of Canfield testifies that he pre-paired proofs of loss for plaintiff and they were sworn tc before him; but, in any event, the plaintiff testifies that immediately after the fire,or shortly after the fire,she reported the loss'to King & Reed, and also a Mr. Beecher, and Mr. Beecher testifies that he is general agent for the company. The plaintiff testifies that Mr. Beecher told her there was no •liability on the part of the company. Mr. Beecher is put on the stand and does not deny it; he is not asked about it.

Lee, Elliott, Hile & Horner, for Plaintiff in Error.

Hart & Qanfield, for Defendant in Error.

Now it is well settled that if the company deny all liability, the proofs cf loss are dispensed with. When the company has notice of the fire and declares that in no event will it pay, there is no necessity of proofs of loss; but here it is testified that proofs of loss were prepared and sent by mail. We think there is no error in allowing recovery because of 'failure of the company to receive proofs of loss. It was sufficient to mail them,and a denial cf all liability is sufficient to relieve one from proofs of loss.

The judgment of the court of common pleas is affirmed.  