Gambar halaman
PDF
ePub

The damage and injury to plaintiff's land, from these percolations, is one hundred dollars. The defendant, in so running and using said water, and permitting it to accumulate upon the north line of his field, was not actuated by any malice or desire to injure plaintiff, but it was done for the purpose of fully utilizing the whole of his field in growing the crop of alfalfa. And, as conclusions of law, the court found that the plaintiff was entitled to a judgment for one hundred dollars damages, and to an injunction restraining the defendant from permitting the water from his wells to flow to and accumulate in the ditch along the north line of his land. And judgment was 80 entered. From the foregoing statement of the facts, it is manifest that the plaintiff was entitled to the relief which he obtained. The water which did the injury to plaintiff was not a natural stream flowing across defendant's land, but was brought upon the land by artificial meang. And the rule is general, that, where one brings a foreign substance on his land, he must take care of it, and not permit it to injure his neighbor. The law upon the subject is tersely expressed in the maxim, Sic utere tuo ut alienum non lædas. We think the judgment should be affirmed, and so advise.

VANOLIEF, C., and HAYNE, C., concurred.

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

MAXIMS — S10 UTERE TUO UT ALIENUM NON LÆDAS. – For instances of the application of the maxim, Sic utere tuo ut alienum non lædas, 8e8 Pittsburg etc. R. R. Co. v. Gilleland, 56 Pa. St. 445; 94 Am. Dec. 98; Hill v. Portland etc. R. R. Co., 55 Me. 438; 92 Am. Dec. 601; Stinson v. New York etc. R. R. Co., 32 N. Y. 333; 88 Am. Dec. 332; Radcliff v. Mayor, 4 N. Y. 195; 63 Am. Dec. 357; Carson v. Godley, 26 Pa. St. 111; 67 Am. Dec. 404.

WATERS. — An owner cannot, by artificial means, discharge upon another's lands percolating water which has collected upon his premises; nor can he allow water to so collect and percolate as to injure the cellar, eto, of his neigh. bor's house: Noto to Wheatley v. Baugh, 64 Am. Deo. 728, 729.

[IN BANK.) JOSHUA HENDY MACHINE WORKS V. AMERICAN STEAM BOILER INSURANCE COMPANY.

[86 CALIFORNIA, 248.) INSURANOB — RIGHT OF ASSURED TO SURRENDER POLICY AND COMPEL RE

TURN OF PREMIUMS. – If an insurance has been effected, and the perils insured against exist for any period of time, however short, the assured is not entitled to insist that the policy be canceled and part of the premium returned to him, by the common law, nor under a statute declar. ing that he is entitled to a return of the premium, when no part of his interest in the thing insured is exposed to the perils insured against, or that when insurance is made for a definite time, and he surrenders his policy before the expiration of that time, he shall be entitled to such proportion of the premium as corresponds with the unexpired timo.

T.C. Van Ness, Haggin, Van Ness, and Dibble, and F. V. Bell, for the appellant.

J. N. E. Wilson and James M. Trout, for the respondent.

WORKS, J. This action was brought to cancel a policy of insurance, and to recover $194.46 as the ratable proportion of a premium paid thereon. Defendant's demurrer, on the ground of insufficiency of the facts stated in the complaint, was overruled, with leave to answer, which it failed to do. Judgment for plaintiff was thereupon entered, from which the defendant appeals. The defendant, on June 2, 1887, in consideration of a three-hundred-dollar premium paid by plaintiff, issued to the latter its policy of insurance, duly countersigned by its agents at San Francisco, whereby it insured plaintiff to the amount of twenty thousand dollars, for a period of three years from June 1, 1887, against loss or damage to property, whether owned by plaintiff or not, or for which plaintiff might be liable, in case of loss or damage resulting from the explosion of either or both of two steam-boilers situate on certain premises in San Francisco; and also against loss of human life or injury to person, resulting from the explosion of either or both of said boilers, for which plaintiff might be liable. Subsequently, on August 22, 1887, and prior to any loss or damage of any kind covered by the policy, plaintiff presented it to the defendant for surrender and cancellation, and requested defendant to accept the surrender of and cancel it. At the same time, plaintiff demanded the return of such proportion of the premium as corresponded with the unexpired term of the policy after deducting thirty per cent. The de

AM. ST. REP., VOL. XXI. — 3

fendant refused to accept the surrender of the policy upon any terms, or to return any proportion of the premium. Among other provisions in the policy is the following: “This policy shall be canceled at any time at the request of this company, on giving notice to that effect, first deducting thirty per cent for the charges of inspection, and refunding to the assured a ratable proportion of the balance of the premium for the unex. pired term of the policy."

The defendant contends that as this provision reserves the right to cancel the policy to the insurance company only, the plaintiff is not entitled to a cancellation of it unless such right exists, independently of the contract of insurance, in some one or more of the cases provided for in sections 1689, 2580, 2610, and 2619 of the Civil Code; and that as the complaint does not present a case within any of those sections, the demurrer thereto should have been sustained. The policy reserves to the insurer the right to cancel the policy under certain conditions and on certain terms, but no such right is given to the insured. Therefore the only question for us to determine is, whether the insured had the right to a cancellation of its policy as a matter of law, independent of any stipulation to that effect in the instrument itself. The code gives the right to rescind or cancel contracts, generally, for certain specified reasons: Civ. Code, secs. 1689, 2580, 3406, 3414. And the right is given to rescind contracts of insurance for certain reasons: Civ. Code, secs. 2610, 2619. It is not al. leged in the complaint that any of the reasons above mentioned existed, but it is contended that section 2017 of the Civil Code gave the respondent the right to have the policy canceled without cause,

his mere request. We do not so construe the section referred to. If this is its effect, the other sections of the code above referred to are wholly unnecessary. If an insured has the right to rescind his contract at his pleasure, and without giving any reason therefor, it was hardly necessary for the legislature to provide, specifically, the grounds upon which such a right might be exercised. The code provides that "an insurer is entitled to payment of the premium as soon as the thing insured is exposed to the peril insured against”: Civ. Code, sec. 2616. And when the peril insured against has existed, and the insurer has become liable for any period, however short, the insured is not entitled to cancel the policy, or to a return of any part of the premium, unless the right is given by the sections of the code above referred to: May on Insurance, sec. 67; Rothschild v. American Cent. Ins. Co., 11 Ing. Law J. 282.

and upon

Section 2617 does not provide when a policy of insurance may be canceled by the insured, or profess to do so. It relates exclusively to the matter of a return of premium, and provides how much of the premium shall be returned to him. Two cases are mentioned; viz., where his interest in the property has not been exposed to any of the perils insured against, and where the insurance is made for a definite time, and the insured surrenders his policy. In the first case, he is entitled to the return of the whole of his premium, and in the latter, to a certain proportion of it. The section is intended to provide how much of the premium shall be returned to the insured in the two cases mentioned, and nothing more. In any of the cases in which either party may cancel the policy as provided in the other sections of the code, mentioned above, or as stipulated by the policy, this section steps in and protects the rights of the insured by preserving to him either the whole or a part of the premium paid by him, as the case

may be.

This view of the effect of these code provisions, or others like them, was taken in the case of St. Paul etc. Ins. Co. v. Coleman, 6 Dak. 458, in which it is said: “But the defendant further claims that he is entitled to a reduction of the amount recoverable, by the terms of the note, by the principles which apply to the return of premiums, claiming that ‘risk and premium go hand in hand, and one ceasing, the other also ceases.' This is not by any means true. If the premium had been paid, and the risk incurred, for any period, no matter how short, no breach of a subsequent condition for which the insured was responsible would entitle him to a return of any of the premium, although the company thereby ceased to be liable. The law relating to the return of premiums is clearly laid down in our Civil Code, sections 1542-1544, and we are not aware that it differs materially from the general law of insurance elsewhere. Section 1542: 'A person insured is entitled to a return of premium as follows: 1. To the whole premium, if no part of his interest in the thing insured be exposed to any of the perils insured against; 2. Where the insurance is made for a definite period of time, and the insured surrenders his policy, to such proportion of the premium as corresponds to the unexpired time, after deducting from the whole premium any claim for loss

or damage under the policy which has previously accrued."
Section 1543: “A person insured is entitled to a return of the
premium when the contract is voidable on account of the fraud
or misrepresentation of the insured, or on account of facts of
the existence of which the insured was ignorant without his
fault, or when, by any fault of the insured, other than actual
fraud, the insurer never incurred any liability under the
policy.' Section 1544: 'If a peril insured against has existed,
and the insurer has been liable for any period, however short,
the insured is not entitled to return of premiums, so far as that
particular risk is concerned.' We cannot see how section
1544, which is particularly referred to by defendant's counsel,
in any way sustains his position. The words so far as that
particular risk is concerned' do not refer to the time in which
the subject is exposed to the peril; but where a premium is
applicable to risks on two or more distinct subjects of insur-
ance, and no risk has ever been incurred upon one subject,
the proportionate premium may be recovered. This is evi-
dent, not only from the reading of the previous sections, but
from the history of the legislation which led to the adoption in
the code states of section 1542. This section, as originally
adopted in California, read: 'A person insured is entitled to
a return of premium paid, or a ratable proportion thereof, if
no part of his interest in the thing insured is exposed to any
of the perils insured against, or, where the insurance is made
for a definite period of time, if it is not exposed to such peril
for the whole period of that time. In proposing as an amend-
ment the language of section 1542, the code examiners said:
“The present section does not conform to the general rule and
the law elsewhere, and is manifestly unjust. Under it, the
insured, meeting with a loss in the first month of a policy for
a year, could recover, not only the loss, but eleven twelfths of
the premium, thus depriving the insurer of that proportion of
the consideration for which he assumed the risk.' If the de-
fendant had sustained a loss during the first year, the pre-
mium for which had been paid in cash, he would have been
liable on his note, because the peril had existed, the insurer
had been liable, and the event insured against, in considera-
tion of the entire premium, had happened. This being an
insurance for five years, and the risk having attached, the in-
sured is not entitled to any reduction on bis note."

The judgment is reversed, with instructions to the court be low to sustain the demurrer to the complaint.

[ocr errors]
« SebelumnyaLanjutkan »