Page images
PDF
EPUB
[blocks in formation]

Supreme Conclave etc. v. Miles....Benefit Society. 92 Md. 613......528

Tate v. Yazoo etc. R. R. Co................... Carriers..............
Thorne v. Clark...........

....

Covenants.

Tolman v. American Nat. Bank....Forged Check
Townsend Brick etc. Co. v. Allen.. Mortgages.

[ocr errors]
[ocr errors]
[ocr errors]

......

[merged small][ocr errors][merged small][ocr errors][merged small]

Wilkins v. Gibson....

[ocr errors]

78 Miss. 842.....649 .112 Iowa, 548.....356

22 R. I. 462.....850 62 Kan. 311............. ..388

88 Or. 68........752

Railway Ticket..... 62 Kan. 327......392

Loan Association.

[blocks in formation]

.....

Legacies.......

92 Md. 101......499

Nuisance................

22 R. I. 576.....855

....Subrogation......................113 Ga. 31........204

Williams v. Hutchinson eto, Ry. Co. Eminent Domain... 62 Kan. 412......408

Winchell v. Waukesha...

Woodside v. Lippold..............

Polluting Waters...110 Wis. 101. ....902
Mortgages.........113 Ga. 877

Worthington v. State............Dying Declarations. 92 Md. 223.

......267 ..506

AMERICAN STATE REPORTS.

VOL LXXXIV.

CASES

IN THE

SUPREME COURT

OF

CALIFORNIA.

SCHROEDER ▼. IMPERIAL INSURANCE COMPANY. [132 Cal. 18, 63 Pac. 1074.]

INSURANCE-CONSTRUCTION OF.-A contract of insurance is to be interpreted by the same rules as are other contracts, so as to give effect to the mutual intention of the parties. This intention is to be deduced, if possible, from the language of the contract.

INSURANCE-CONDITION AGAINST FORECLOSURE – KNOWLEDGE OF INSURED.-A condition that a policy shall be void "unless otherwise provided by agreement indorsed thereon or added thereto, if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed," is directed to the fact of knowledge on the part of the insured of the commencement of foreclosure proceedings, and not to the time that he may obtain such knowledge. The reasonable construction to be given to the clause is, that whenever he shall have knowledge of the proceedings, and not before, and shall fail to obtain the consent of the insurer thereto, the policy shall be avoided.

Chickering, Thomas & Gregory, for the appellant.

Van Ness & Redman, for the respondent.

18 HARRISON, J. Action upon a policy of fire insurance. The plaintiff's right of recovery depends upon the construction to be given to the following clause in the policy: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void,. if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy, by 10 virtue of any mortgage or trust deed." The policy was issued

Am. St. Rep., Vol. LXXXIV-2 (17)

19

November 6, 1893, for the term of three years. At that time the dwelling-house, which was a portion of the insured property, together with the land upon which it stood, was subject to the lien of a mortgage, and on April 30, 1895, the mortgagee commenced an action for its foreclosure, and made the insured one of the defendants therein. The insured and the other defendants were duly served with process in the action, and on May 18, 1895, a judgment was rendered therein for the amount of the mortgage debt, and directing a sale of the property in satisfaction thereof. Under this judgment the property was sold, June 15, 1895, to the plaintiff in the action. The dwelling-house was destroyed by fire, November 15, 1895. The insured gave no notice of the foreclosure proceedings to the defendant, nor did the defendant have any knowledge. thereof until after the property was destroyed. The superior court held that the above clause did not have the effect to avoid the policy, unless the insured had knowledge of the foreclosure proceedings before or at the time of their commencement, and that as it does not appear herein that she had any knowledge thereof until the service upon her of the process in the action, the policy remained unaffected by the proceedings. Judgment was therefore rendered in favor of the plaintiff, and the defendant has appealed.

A contract of insurance is to be interpreted by the same rules as are other contracts, and is to be so interpreted as to give effect to the mutual intention of the parties; and this intention is to be deduced, if possible, from the language of the contract: Civ. Code, secs. 1635, 1636; Wells, Fargo & Co. v. Pacific Ins. Co., 44 Cal. 397; Yoch v. Home Mutual Ins. Co., 111 Cal. 503, 44 Pac. 189. The above clause in the policy is included in that portion which enumerates many grounds for avoiding it, and it is manifest that the parties intended by these several clauses to agree that the defendant should not be liable upon the policy in case the risk that it assumed should be thereafter increased, unless its consent to such increased risk should be indorsed upon the policy. The provision above quoted is directed to the fact of knowledge, on the part of the insured, of the commencement of foreclosure proceedings, and not to the time at which he may obtain such knowledge, and the reasonable construction to be given to the clause is, that whenever he shall have knowledge of the proceedings, and shall fail to 20 obtain the consent of the insurer thereto, the policy shall be avoided. That the risk assumed at the date of

« PreviousContinue »