Phœnix Insurance v. Maxson , 1890 Ill. App. LEXIS 668 ( 1891 )

Harker, J.

In seeking a reversal of the judgment in this case, counsel for appellant present several points of contention.

We do not care to consider at length in this opinion more than one of them, and that is the one relating to the occupancy of the house at the time of the fire.

The condition of the title to the property was fully known both by the soliciting agent and the district agent at the time the policy was issued, and at the time it was assigned to Mary Maxson. While the policy runs to the minor children, Ludwig and John, it was in fact issued to John Weisenberger, whose money paid for it. Manaban so understood it. He wrote the application. Miller, the district agent, so understood it. The company was not in a position to deny liability because of misrepresentation of title, or because the policy did not run to John Weisenberger. Had not the building been vacated at the time of the ñre we should not hesitate to affirm the judgment.

It was provided by the policy that if the building insured should become vacant or unoccupied, the policy would be null and void, and that the only person authorized to waive that condition was the company’s general agent at Chicago, and that in writing.

To avoid the effect of that condition, it was shown by testimony introduced by appellee that David L. Miller, the district agent, residing at Sterling, where the property was situated, when spoken to by the husband of appellee as to allowing the house to stand vacant, said that a vacancy of a period of not longer than thirty days would not avoid the policy. Miller, when introduced as a witness, denied making any such statement. In our view of the case it is not necessary to express any opinion as to whether he did or not. Miller had no authority to waive the condition. An authority could not be presumed because appellee had been advised by the terms of the policy of the only person authorized to waive it and the manner of waiving it. Her husband, who seems to have managed the entire business for her, had possession of the policy and opportunity to understand its contents before the making of the alleged statement by Miller. He knew the contents of the instrument before he saw Miller; he knew the terms of the contract and the limit of the agent’s (Miller’s) authority. This knowledge was the knowledge of his wife. The question of implied authority on the part of Miller is not in the case.

Where a policy, already issued and delivered, contains a condition which, by the terms of the instrument, can be waived only in writing, and by a certain officer named, an attempted parol waiver by another does not bind the insurance company. Hor is it competent to show that by a contemporaneous verbal arrangement made by a special agent of the company, another different and contradictory agreement was made which modifled or altered the condition contained in the policy. Evidence of a contract can not exist partly in writing and partly in parol. Smith v. Price, 39 Ill. 30; Purinton v. N. I. R. R. Co., 46 Ill. 297; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 168; Hartford Fire Ins. Co. v. Webster, 69 Ill. 392.

It is claimed, however, by counsel for appellee, that the statement made by Miller was not in the nature of a contemporaneous verbal agreement, but an agreement made prior to the making of the contract of insurance between appellee and the company, and falls within that class of cases where an agent, impliedly authorized, prior to the time the policy is delivered, makes such modification of the written contract as to furnish an opportunity on the part of the court to treat the contract as if certain provisions were stricken out. The reason for the seeming departure from that well settled rule of law that all anterior verbal agreements are merged in the written contract, as explained in several of the cases falling within that class, is found in the fact that the assured had no knowledge of either the contents of the policy or the authority of the agent, and therefore had a right to rely upon all that was said by the agent Such reason does not support the contention of appellee in this case. Before the making of the alleged statement by Miller, she had knowledge of the contents of the policy and the limitation of authority to waive the vacancy condition, or at least ample opportunity to possess herself of such knowledge. It is immaterial, then, whether the statement made by Miller was made during the time the parties were making the contract of insurance, or prior, to that time.

There is a clear distinction between a case of verbal modification of a written condition contained in a policy of insurance with reference to a condition of things which exist at the time, and a case of such modification with reference to the future conduct of the parties. If, when the policy is issued, the property is vacant, and the agent states to the assured, who has no knowledge of nor opportunity to know the limitation of the agent’s authority, that the vacancy will not affect the liability, the policy is treated as having been issued with the vacancy clause stricken out.

But if, when the policy issued, the property is occupied, and the agent states orally that as to future occupancy the vacancy condition need not be complied with, the statement is not binding and can not be relied upon, because the assured is notified by the language of the policy, that vacancy without permission will avoid the policy, and has the opportunity of protecting himself if he desires to have the property vacated.

In this case not only was the modification contended for with reference to the future conduct of the assured, other and different from the then existing state of affairs, but was made by an agent whom the assured had been notified had not authority to make such modification. Where the assured is notified of the limitation of the authority of the agent, the former can not rely upon the statements of the latter in excess of his authority. Wood on Insurance (2d edition), 841, 844, 845; May on Insurance (3d edition), Secs. 126, 127; Guernsey v. Ins. Co., 17 Minn. 111; Bouton v. Ins. Co., 25 Conn. 542; Ins. Co. v. Moury, 6 Otto, 544.

We do not care to express any opinion as to the contention of appellee that there was no such vacancy as is contemplated by the policy. An examination of the evidence and instruc- - tions show that the case was tried upon the theory that the vacancy condition had been waived.

It was error in the court to allow the testimony of the alleged waiver by Miller to'go to the jury, and error to give instructions upon the subject of waiver. For those errors the judgment must be reversed and the cause remanded.

Reversed and remanded.