Planters' Mutual Insurance Ass'n v. Dewberry , 69 Ark. 295 ( 1901 )

Hughes, J.,

(after stating the facts). While there is a conflict in the decided cases upon the question involved in the first instruction, — that is, that the title to the property was changed by the death of R. A. Dewberry after the execution of the policy and the descent of the property insured to his wife and children, — we incline to the opinion that the more reasonable view is that the title to the property was not changed by the death of R. A. Dewberry and the succession of his wife and children to his rights therein, within the meaning of the policy. We think this view amply supported by the decisions. Richardson v. German Ins. Co., 89 Ky. 571; Burbank v. Rockingham, 24 N. H. 550; Forrest City Ins. Co. v. Hardesty, 182 Ill. 39; Georgia Home Ins. Co. v. Kinnier, 28 Grat. 88.

We are of the opinion that the court committed reversible error in refusing to give instructions two and three asked by the defendant, which were to the effect that renting the property to Woodford Haile for twelve months and its occupancy by him at the time of the loss constituted a change of possession under the policy. The house destroyed was occupied by Mrs. Clara A. Dewberry at and-after the death of her husband, until she rented the property to Woodford Haile, and gave him possession thereof, and moved away from the premises, and thereafter^ until the house was consumed by fire, it was in the possession of Woodford Haile, and occupied exclusively by himself and family consisting of nine others. If this was not a change of possession and occupancy, it is difficult to determine what would be. The parties to the insurance policy made their contract, and stipulated that there should be no change in the possession or occupancy of the property ■without the consent of the insurance company. The change of possession and occupancy was made without the consent of the insurance company, and continued to the time the house was consumed by fire. This was a violation of an express provision of the terms of the policy, the contract between the company and R. A. Dewberry, the insured, and avoids the policy according to its stipulations.

“Where the policy provides that it shall be void if any change takes place in the ■ interest, title or possession of the subject of insurance, such provision has reference to change subsequent to the time of effecting the insurance. Leasing the property and surrendering possession to the lessee is a change in the possession. If the policy is conditioned to be void in case any change takes place in the interest, title or possession of the subject of insurance, wheth-. er by legal process or judgment, or by voluntary act of the insured, or otherwise, an assignment for the benefit of the creditor will avoid the policy.” 3 Joyce, Ins. § 2338.

In Wenzel v. Commercial Ins. Co., 67 Cal. 440, the court said: “Another point made by the appellant is that the condition of the policy in regard to a change in possession of the property was broken by the insured. In the ninth finding it is found by the court as a fact in the case that on the 17th day of January, 1883, the plaintiff and others, without the consent of the defendant, leased the property insured, and surrendered the possession thereof to James Hoskins and his associates. This was a breach of condition in the policy which rendered the same void according to the express language thereof.” Hartford Fire Ins. Co. v. Ross, 23 Ind. 180; Germania Fire Ins. Co. v. Home Ins. Co., 144 N. Y. 195.

Dor the error indicated the judgment is reversed, and the cause is remanded for a new trial.