Willow Grove Creamery Co. v. Planters' Mutual Insurance

Briscoe, J., delivered the opinion of the Court. A single question is presented by this appeal. The action was brought by the appellant against the appellee upon a policy of fire insurance, to recover for a loss by fire. The contract of insurance was in writing, consisting of the application on the part of the appellant, and the policy which was issued by the insurance company.

About two years after the policy was issued the property was totally destroyed by fire, and this suit was brought by the appellant to recover the loss sustained thereby. The appellee is a mutual insurance company, and the policy expressly declares that it was made and accepted subject to, and upon the terms and conditions mentioned in the by-laws of the company. By the 10th section of the by-laws it is provided that: “If any property insured in this company shall be rendered more hazardous, after an insurance is effected, by any means whatever, within or not within the control of the insured, such person so insured shall immediately give notice to the secretary, and the directors may either elect to continue the insurance upon the same terms, or continue it if the insured shall give his additional premium note for such sum as the directors may determine, or may cancel the policy and return the premium note and the ratable portion of the five per cent, unexpended. And if the insured shall omit, in such case to give notice, then such insurance shall be void, and of no effect.” The loss in this case was proved, but the insurance company set up the defence that the policy had been forfeited by a violation of section ten of its by-laws.

The uncontradicted proof shows that at the time of the issuance of the policy the smoke-stack of the building projected about seven feet above the comb of the roof, and was there secured by tin; that afterwards this smoke-stack was changed to the side of the roof near the eaves and projected three or four feet above the shingles, bringing the top of the pipe ⁵³⁴ three or four feet below the comb of the roof; and that the fire resulted from this change about three hours after the alteration had heen made. And it was admitted that no notice whatever was given the insurance company of this change, nor was their consent ever obtained thereto. At the trial the appellant asked the defendant's agent the following question: “Do you know whether or not your company, the defendant, as a