Home Insurance v. Scales

Campbell, C. J.,

delivered the opinion of the court.

"Where the action of the court upon the pleadings determines the controversy between the parties, or some feature of it, and so puts an end to it as to withdraw it from the jury and eliminate it as a factor in the trial of issues of fact, this court should pass upon the action of the lower court on the pleadings; but where the matters involved in the altercations between the parties, however voluminous, and, though the judgment of the court be ever so often required and given, are afterwards litigated before a jury trying the case, this court, on appeal, will not perform the useless task of pronouncing seriatim on the various rulings made dui’ing" the preparatory skirmishing between the combatants, but will pass all by, and deal with the final engagement and what was done in it. The only legitimate object of pleadings is to bring parties to an issue on the real grounds of controversy ; and where this court, looking through the records, discovers that a trial was had finally on these grounds, it will not concern itself as to any errors committed in reaching the point of real contest. We have waded wearily through the *979 vast mass of preliminaries to the final battle in this ease to ascertain that the declaration, with its four counts, the eight pleas, the numerous replications, the motions to make definite, motions to strike out allegations, rejoinders, surrejoinders, demurrers at almost every step, leaves to amend, and judgments as required by the successive steps, the record of which covers one hundred and sixty pages, all resulted in bringing the parties to trial of the only matters in dispute between them; and the question now is, not whether some •slip was made in the hurry of a circuit court tidal, and-some error committed in deciding the multitude of questions there presented, but in the final contest, where every thing involved in the case was investigated, was any reversible error committed against the party found against?

The three matters in dispute áre: (1) As to the title of the property insured, (2) as to the occupancy of the house, (3) as to proof of loss as required by the policy. The insurance company denied liability on the ground that there was a breach of warranty in the matter of title, and that the house insured was vacant or unoccupied, and so remained for ten days, in violation of the policy, and there was failure to make proof of loss as the contract required.

"We have carefully considered the three matters of dispute, and, while we think neither the first nor third presents an insuperable obstacle to the maintenance of the recovery had, we cannot escape the conviction that the second does. The house was, unquestionably, unoccupied for more than ten days before the fire and when it occurred. It matters not that Hibbler, the then local agent of the insurer, now testifies that he did not consider the house vacant or unoccupied, and that he would have issued another vacancy permit if he had thought it necessary. The house had been rented, and, when insured, was occupied by merchants. They moved out, abandoning the house as their store, in August. The house was found closed, and a vacancy permit for thirty days was, at the instance of the general agent, Kreth, issued by *980 Hibbler, the local agent, and delivered to Scales, who attached it to the policy. lie was thus admonished of the fact of non-occupancy, and of the course of business pursued in such case. The time for which the tenants at the time of the issuance of the policy rented, expired September 1. By that time, some meat they had left in the house was sold and removed. They left a few empty molasses barrels, some old boxes and papers in the house, and they had the key — not surrendered to the agent of the owners, because he told them they could keep it until another tenant came. This was not such occupation of the house as the policy required, no matter what Hibbler or anybody else may have thought. If Hibbler knew the facts, and thought the house occupied, he was mistaken in his judgment of what was required to constitute occupation. Grant that his knowledge is imputable to the company, and the case is not altered. The company was not bound to notify the insured of the unoccupied condition of the house, if it actually knew it. Hibbler may have been under obligation to Scales, and he may have disregarded it, or erred in his judgment, and Scales may have cause of complaint against him, but, in all this, Hibbler was friend and agent, if at all, of Scales, and not of the company. If Hibbler, the agent, had done any thing in his capacity as agent, after the house was unoccupied, to mislead the insured, the case would be different, but nothing of that sort occurred. There was silence, and that is never ground for estoppel, except where it is a fraud, which cannot be predicated of this silence. The agent had a right to be silent, and give no notice as to the unoccupied condition of the house. It was no part of his business, as agent of the company, to keep policies from being avoided by violation of their conditions, whatever obligations he may have assumed by his engagement to the insured, as to which engagements he could not bind the insurer.

¥e feel safe in the assertion that no adjudication, or declaration of a text-writer, can be found to support the proposi *981 tion that the house insured in this case was 'not “ unoccupied,” so as to avoid the policy. We have searched in vain for any such utterance. There are many to the contrary. Richards on Ins., § 150, and cases cited ; 1 Biddle on Ins., § 660, and citations; Ostrander on Ins., § 1.43, and cases cited; Wood on Pire Ins., §89, and cases cited; 1 May on. Ins., § 249 et seq., and references.

It may be regretted that careless inattention caused the policy to be forfeited, and, gratifying as it would be to us to be able to affirm the judgment in this case, we are constrained to order that it be Reversed.