KRUGER V. WESTERN FIRE AND MARINE INSURANCE COMPANY.

[72 CALIFORNIA, 91.]

GENERAL AGENT OF FIRE INSURANCE COMPANY may waive a condition inserted in the policy issued by the company. Condition in policy of insurance is waived by the issuing of such policy by a general agent, who at that time knows of and assents to facts which constitute a breach of such condition.

WAIVER OF BREACH OF CONDITION AT ISSUANCE OF POLICY of insurance continues in favor of all renewals granted of such policy.

S. C. Van Ness, for the appellant.

D. M. Delmas and George Lezinsky, for the respondents.

By Court, FOOTE, C. This was an action to recover upon two policies of insurance. The cause was tried before a jury, who brought in a verdict in favor of the plaintiffs, upon which a judgment was rendered against the defendant for fifteen hundred dollars, costs, etc. From that judgment an appeal is prosecuted.

From that record it appears that in the year 1881 Grant Lapham, the agent of the defendant in the county of Alameda, where the plaintiffs kept their stock of goods, was at the place of business of the plaintiffs, and examined said stock, and that on the thirty-first day of August, 1881, after such examination, the defendant issued a policy of insurance upon the stock of goods thus examined by its agent.

The testimony of one of the plaintiffs with reference to the transaction was as follows:

"Yes, sir; I did have a conversation with him,"-meaning Lapham.

"First, you know, we insured with another man. The agent came round and insured us. That was right before the Fourth of July. He did not bring around the policy; he kept the policy. During the Fourth we did not have any policy at all. Right after the Fourth he brought it around. I said: 'You just bring it around now. There is no danger now.' That was before the danger is over now,' I says. You can keep it now.' He left it in the store; left it there over a week. I told him I would not accept it. Then during the week I read over the policy what he left there. It mentioned something about the coal-oil. During that time Mr. Grant Lapham came around and said he wanted to insure us. I told him about this. He was a friend of mine. I told him about this that was in the

policy. 'What is the use of insuring? We cannot get nothing if we burn out. Because it says there mentions about the coal-oil.' 'He says such a small amount as you keep, that won't be any matter. You don't keep any large amount.' I told him all right; go on and insure us. Then he brought around the policy; so it was all right. We kept it."

It was further proved that upon the expiration of the policy thus issued in August, 1881, and at the expiration of each year thereafter, down to and including the issuance of the policies in suit, new policies in the same company upon the same description of goods were issued by defendant 'to plaintiffs.

No further conversations with any agent of the defendant were proved, nor were any other policies than those in suit introduced on the trial.

It appeared in evidence that there was an indorsement on said policies as follows:

"Not valid until countersigned by the regularly authorized agent at Oakland, Alameda County, Cal. Countersigned Oakland. GRANT LAPHAM."

The record further shows that during all the times that the policies sued on were in force, and at the time of the fire and loss in the complaint alleged, the plaintiffs kept, stored, used, and sold upon the premises in which the property described in the policies was during such time kept, the products of petroleum, consisting of illuminating oils; that the said oils were kept in a ten-gallon tank, into which they were poured at the top, and from which, when required by customers, they were drawn through a faucet; that the premises were lighted with said oils in lamps; and that the fire alleged in the complaint was directly caused by the fall of one of the said lamps; that the tank in which said oils were kept was the same tank that had been used by the plaintiffs on said premises during all the times they had carried on business on said premises, and that it had during all of said times stood directly opposite within a few feet of the entrance to said premises, and in full view of every one who entered the same; that no other oils were kept by the plaintiffs on said premises, except those kept in said tank, and plaintiffs also used said tank for the purpose of filling the lamps used for lighting said premises.

The policies of insurance contained, among others, this clause:

"C. This company shall not be liable for loss occurring while any of the following-named articles are kept, stored, or

used in or on the premises herein described, any custom or usage of trade or manufacture to the contrary notwithstanding, namely: petroleum and its products.'

It will be seen that the plaintiffs, having kept petroleum and its products on the premises in question, although in small quantity, could not recover on the policies, unless it should appear that the condition of the policy upon that subject had been waived by the company.

The acts and language of Lapham as above stated are not contradicted, nor is it disputed that he was the regularly constituted agent of the company resident at Oakland when the first policy of insurance was issued.

The policies sued on were unquestionably but renewals of that policy, and we think that an agent, so appointed and authorized as he was, was empowered to waive the condition of the policy, and we are of opinion that the plaintiffs were warranted, from what he said and did, in believing, and did believe, that such condition was waived. Lapham was the general agent of the company at Oakland, and authorized to represent it, make contracts of insurance, and transact its business at that place according to the practice and course of dealing of such corporations. He was authorized to make and did make the original contract of insurance; and the policies in suit, being but renewals of that, are to be affected by his acts as if they were the original contract: Miner v. Phoenix Ins. Co., 27 Wis. 693; 9 Am. Rep. 479, and cases cited.

The agent of the defendant authorized to act for them, and by whose acts they were bound, knew when he countersigned and delivered the policy that it was absolutely void, unless he had waived the condition of the policy, by means of the alleged existence of which the company now seeks to avoid the payment of the loss; that is to say, the agent and the company took the premium, and yet believed the policy was void. And the company now says: "At the time we took your premium your policy was void, although our agent told you it was not, and induced you so to believe; yet you cannot recover of us the loss you claim, and you cannot be heard to state in evidence what our agent said, as that would be to vary the terms of a written contract by parol testimony." This, we think, the company is estopped from doing: Woodruff v. Imperial Fire Ins. Co. etc., 83 N. Y. 140, and cases cited.

The delivery of the contract and a breach of its condition were concurrent acts, if the defendant's theory of the case be

correct; and at the moment the contract was entered into, it was void, although the party effecting the policy on his goods paid then and there the premium, and was made by the agent to believe that the policy was valid, and the petroleum-oil clause waived. The defendant's contention is without force. In the language of a distinguished judge, "we would scarce expect two parties to go through so senseless an act" as is claimed to have been done by the defendant, "if the facts. were known to each at the time; but would rather conclude that they had by words or act agreed that the condition should not be considered as binding": Van Schoich v. Niagara Fire Ins. Co., 68 N. Y. 436.

We are of opinion that the evidence objected to was properly allowed to go to the jury; that their verdict was in accordance with the facts in evidence, and the charge of the court, which last was not erroneous; that no prejudicial error is shown by the record; and that the judgment should be affirmed.

SEARLS, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

Hearing in bank denied.

INSURANCE-WAIVER OF CONDITIONS - WHAT AGENTS HAVE AUTHORITY TO MAKE: Combs v. Hannibal Sav. Co., 43 Mo. 148; 97 Am. Dec. 383; Sheldon v. Atlantic F. & M. Ins. Co., 84 Id. 213, and note; Keeler v. Niagara F. Ins. Co., 84 Id. 714; Viele v. Germania Ins. Co., 96 Id. 83; Pino v. Merchants' Mutual Ins. Co., 92 Id. 529; Murphy v. South. L. I. Co., 27 Am. Rep. 761; Stolle v. Etna F. & M. I. Co., 27 Id. 593, and note.

PIERCE V. GERMAN SAVINGS AND LOAN SOCIETY.

[72 CALIFORNIA, 180.]

NUISANCE. - Purchaser of reversionary interest in real estate upon which a nuisance exists, and of which he has full knowledge, and who thereafter receives the rents thereof from the tenant in possession, is answerable for damages arising from such nuisance subsequent to his purchase.

Jarboe, Harrison, and Goodfellow, for the appellant.

E. F. Swortfiguer, George A. Wentworth, and Lloyd Baldwin, for the respondent.

By Court, SEARLS, C. This action is brought to recover damages claimed to have been sustained from a nuisance maintained upon the premises of the defendant adjoining those of the plaintiff.

The cause was tried by a jury, and a verdict rendered in favor of the plaintiff for $1,050, for which sum judgment was entered. Defendant appeals from the judgment, and from an order denying a new trial.

The facts shown by the evidence are, that the plaintiff and the defendant are the owners of contiguous lots of land on Montgomery Street in San Francisco, separated by a partywall; that the plaintiff has been the owner of his lot of land for upward of twenty years, and that the defendant has been the owner of the adjacent lot of land since August 3, 1882; that upon the premises of the defendant there has been maintained a steam-bathing establishment for ten or twelve years; and that by the manner in which the said bathing establishment had been maintained, the plaintiff had sustained damage.

It also appeared that the said steam-bathing establishment was placed there by the former owner of the premises, and during the period of the alleged nuisance and damage was maintained by one Justin Gates, who was in possession under a lease from August Alers, the owner of the said premises at the time of making said lease.

Gates had been in possession of the premises, and had maintainted the steam-bathing establishment, since January 1, 1880. He had taken a new lease from Alers, January 11, 1882, for the term of two years, and had remained in possession under that lease until after the commencement of this action.

While Gates was so in possession of the premises under this lease, Alers, on the 3d of August, 1882, conveyed the premises to the defendant, and after that date Gates attorned to the defendant, and paid it the rent provided for in the lease. In the summer of 1883 the premises were repaired by the defendant, and since then no damage has been sustained.

It would seem that the injury complained of commenced as early as 1881, and in January or February of 1882 plaintiff notified August Alers of the fact; that Alers then claimed to have nothing to do with the property, and referred plaintiff to the defendant as the owner. Defendant held a mortgage upon the property, but did not become the owner thereof until August 3, 1882, as before stated.