Viele v. Germania Insurance Co.

risk be increased through means within the control of plaintiff without the written assent of defendants indorsed thereon, then and thereupon the policy shall be void.

It is admitted that the risk was so increased through acts of plaintiff without obtaining the requisite written assent, whence it follows that the policy and the insurance then ceased to exist, and the parties then stood toward each other the same as if no insurance had been effected. There cannot be the least doubt that had the fire occurred before the agent of defendant knew of the increase of risk, plaintiff could not have recovered one cent of the insurance. Lee v. Howard Ins. Co., 3 Gray, 583; Murphy v. The People E. N. F. Ins. Co., 7 id.

239.

II. The policy being absolutely void, it could be reinstated and the risk assumed again only by a new consideration.

There is a wide difference between waiving the act before a forfeiture which unwaived would cause the forfeiture, and waiving the forfeiture when once it has taken place, especially if it is for a condition subsequent. The former may be by parol, the latter cannot, unless supported by a consideration. Phillips on Insurance, § 904.

As for instance, had defendant on application of plaintiff, before the increase of risk, orally waived the written assent required therefor, no consideration would have been required to sustain such waiver, it being a condition. barely on the happening of which the contract was to But the contract having once ceased to exist, it can be resuscitated only on a consideration moving from the assured to the insurer, or by writing, which implies a consideration.

cease.

Phillips on Insurance (vol. 1, p. 8, § 10) states the law to be; "a policy being forfeited by a violation of some of its conditions, a mere oral waiver of the forfeiture is not

Viele v. Germania Insurance Co.

sufficient to revive it, unless some new consideration on the part of the assured supervenes, or some transaction takes place between the parties under the contract importing a waiver, such, for instance, as would be equivalent to receiving rent from a tenant for a time posterior to the forfeiture of a lease by non-payment of rent."

And again, in section 1040, "the forfeiture of a claim under a policy, by alienation, may be waived in writing, but not by a merely verbal consent to waive it after it has accrued."

In Smith v. The Saratoga County Mutual Fire Insurance Company (3 Hill, 509), which was an action on a policy that had been assigned notwithstanding the provision that it should become void if assigned without the consent of the company in writing, the court say: "It is said that the defendants by making and collecting assessments upon a premium note after they had notice of the assignment of the poiicy, have waived the forfeiture and affirmed the continuance of the contract, and this is likened to the case where a landlord after notice of some act or omission by his tenant which gives a right of re-entry, receives or distrains for the subsequent accruing rent, or does some other act by which he plainly affirms the continuance of the lease. This is held to be a waiver of the forfeiture. But this doctrine only applies when the act or omission of the tenant renders the lease voidable, and not where it is declared absoluteiy void on the happening of a particular event. The distinction is between cases where the landlord may put an end to the lease by an entry for the wrong done, and those where the wrong terminates the lease without any act on the part of the landlord. In the former case the landlord may waive the forfeiture by an act which affirms the continuance of the tenancy; but in the latter the lease being ipso facto void, is incapable of confirmation. Finch v. Throck

Viele v. Germania Insurance Co.

morton, Cro. Eliz. 221; Mulcany v. Eyres, Cro. Car. 511; Anon, 3 Salk. 4, and see Co. Litt. 295, b; Rickman v. Garth, Jac. 173; Jones v. Verney, Willes' Rev. 169, 176, 177; Jenkins v. Church, Cowp. 482; Doe v. Watts, 7 0. R. 79; Doe v. Rees, 4 Bing. N. C. 384; Goodwright v. Davids, Comst. 803.

Keenan v. The Missouri State Mutual Insurance Company (12 Iowa, 127) is not in conflict with the doctrine laid down above, as the conditions of the policy in the latter case were, that the policy should cease to be effective only so long as the premises were appropriated to uses denominated hazardous, or extra hazardous, while, in the former, the policy became absolutely void by such uses. That is to say, in the one case the insurance was suspended, in the other dead, while the one can be revived by a removal of the cause, the other can only be by a new contract supported by a new consideration.

III. The court submitted to the jury, on the request of the plaintiff, the following special question, viz.: "Did the defendant, by its agent, Verder, with knowledge of all the facts claimed by defendant to constitute breaches of the conditions of the policy sued on, by its conduct and language to the plaintiff or his agent, recognize and treat said policy, and the insurance thereby made, as still continuing and in force, and induce the plaintiff, or his said agent, so to regard it?"

A party is entitled to a special verdict or finding only upon material facts upon which issue has been joined by the pleadings in the case; and it should be in a form that does not involve a statement of the evidence or conclusion of law. Hatfield v. Lockwood, 18 Iowa, 296.

The fact called for by the interrogatory is not a material fact under the issues. To be material, it must be either a waiver or an estoppel in law.

Unless, therefore, it was, in effect, a waiver or an estop

pel, it was immaterial, and tended to mislead the jury. It was neither.

IV. The special questions two and three, given by the court on its own motion, were erroneous; because, inasmuch as the hazardous use of the building, viz., by the rustic window shade manufactory, was wholly unauthorized by the policy, the rule, that the incidental use of a hazardous article, necessarily and commonly used in a business permitted by the policy, does not contravene the general provision prohibiting the keeping or using such hazardous articles (as laid down in Citizens' Insurance Company v. McLaughlin [Penn.], reported in 6 Am. Law Reg. N. S. p. 374; also 6 Wend. 623; 3 N. Y. 122; 11 id. 554: Harper v. Albany Mutual Insurance Company, 17 id. 194), does not apply.

Up to the time of the pretended waiver or estoppel, the increased hazard by such use of the building was wholly unauthorized by defendant, and therefore the use of benzine, whether necessary in the business, or in large or small quantities, was in violation of the terms of the policy, and rendered it void.

V. After such waiver or estoppel, which could only apply to the forfeiture that had already occurred, a new forfeiture occurred daily and hourly from the use of this prohibited article, unless the business in which it was necessarily and customarily used was authorized. This could only be done by the written consent of defendant on the policy.

The waiver or estoppel applied only to what was past. Nothing short of a new contract to continue the insurance on the building, with the omission of that condition requiring written consent to such increased hazard, and a verbal consent under such new contract, could authorize the continued use of benzine.

Proof of a mere waiver of forfeiture already occurred,

Viele v. Germania Insurance Co.

or estoppel as to an act already passed, is insufficient to authorize a continuing act which creates forfeiture.

An act which creates a single forfeiture may be waived, or a party may estop himself from asserting a fact which occasioned a forfeiture; but it would be stretching the rule beyond all the authorities to say, that proof of such waiver or estoppel, as in this case, was sufficient to authorize the continued use of the building for a hazardous business, in direct violation of the terms of the policy, without any new contract, or any new or additional premium therefor.

VI. The court is bound to submit to the jury special questions, which, if answered favorably, would benefit the party asking for such submission. Rev. § 3079; Partridge v. Gilbert, 3 Duer, 184; affirmed, 15 N. Y. 601.

The same argument applies to the 3d, 4th and 5th questions requested to be submitted by defendant.

The 12th question ought to have been submitted to the jury, because it sought to elicit from the jury an ultimate fact upon which the whole case turned. The utmost stretch of the evidence, and excluding in this view the testimony of Mr. Verder, where it conflicts with Mr. Newcomb, will no more than cover the bare statement that Mr. Verder consented to the use of the building for the manufacture of rustic window shades if they complied with his directions. It is an unsupported pretense to assert that there was any other waiver.

VII. We affirm with great confidence, that the evidence does not establish such a state of facts as amounts to a waiver of the forfeiture, or an estoppel on the company, or a reinstatement, renewal or revival of the policy.

By the increase of the risk as admitted by plaintiff the policy became absolutely void. Waiver applies only to contracts which are voidable upon the happening or omission of a certain event or contingency. Smith v. The