DISSENTING OPINION OP
GALBRAITH, J.One of the alleged errors presented by the defendant’s hill of .exceptions was the ninth instruction wherein the court charged .the jury as follows: “The jury are instructed that the company having written upon the face of itsi policy that one of the buildings was occupied and the other to he occupied, constitutes a waiver of any claim of forfeiture by the company on the ground that the building referred to in the second clause of .the typewritten matter upon the face of the policy was unoccupied for more than ten days.”
The question presented by this exception 'is, Did the court -correctly state the law?
The defendant contracted to indemnify the plaintiff for the term of one year from noon-of the third day-of January, 1900, to noon of January 3, 1901, against all direct loss or damage by fire, except as otherwise provided in the contract, to an .amount not exceeding one thousand dollars to the -property described. On a typewritten slip pasted to the face -of the policy was the following:
“Choy Look See. '
One thousand dollars as follows: .
On the two-story frame shingled roof building, occupied by tenants as retail stores- and dwellings situate on the east comer of Beretania • and River streets, Honolulu, H. I., .Block 10. : $ .250.00
On the three-story frame shingled roof building, to be occupied as .stores and dwellings, situate, op the $ 750.00 *16east side of River street about 60 feet from the corner of Beretania and River streets, Honolulu, H. I.
$1000.00 Other insurance; Scottish Union on this one $500. This slip is attached to and made a part of Policy No. 513612, issued by the Royal Insurance Co. of Liverpool.”
This was signed by defendant’s agent. The evidence shows that this item No. 2 described in part “to be occupied” was a new building nearing completion;, that some work (how much does not appear) was necessary to finish the painting and windows; that the plaintiff did not understand English and talked to the defendant’s agent through an interpreter; that the defendant solicited the insurance and when plaintiff called for the policy it was written and ready for delivery. It nowhere appears that the policy was translated or explained to her or that she understood its terms and conditions other than that she thought that she had a contract of indemnity from loss by fire on her property for a period of one year; that 17 days after the policy was delivered the property w°s burned by a fire that was started by order of the Board of Health in its crusade against the alleged epidemic of bubonic plague. It is also a matter of common knowledge that the policy was written at a time after it was widely circulated and generally believed that' a plague epidemic was raging in Honolulu, and that the property insured' was located in the part of Honolulu known to- be the center of the infected district.
It- is clear from the terms of the policy that it was not the intention or wish of the company to insure -vacant or unoccupied buildings unless the fact of vacancy was made known to- it, and that the clause in the policy permitting a vacancy for ten days Was placed there to cover necessary and incidental vacancies occurring in changing tenants or occupants. It is equally clear in this instance, by the words used in the typewritten slip that the' company knew at the time .the contract was executed by the delivery of the policy thát one- of the buildings-insured was a ' new building and had never been occupied and was' then a Vacant and unoccupied building and as such it was insured. *17This building could not “become vacant or unoccupied;” it was then both vacant and unoccupied.
"Was it the intention of the defendant to waive this vacancy clause by writing the insurance on a vacant and unoccupied building? And was this purpose and intent evidenced and demonstrated by writing in the slip “to be occupied?” It surely did not mean that the building should be occupied within ten days, for if that was the meaning these words were useless and meaningless, for the printed clause would mean that without these added words. The majority treat these words “to be occupied” as ornamental surplusage, or as though they had not been written there. This is clearly wrong. Those are not idle words. There was some reason or purpose in writing them. What was that purpose? In determining the question resort should be had to the well established and recognized rules for the interpretation of contracts in general and insurance contracts in particular.
The safe rule for guidance in this matter was announced by the Circuit Court of Appeals, Fifth Circuit, in a recent decision as follows:
“Conditions for forfeiture in the printed forms of insurance policies now in general use have been prepared by the insurance-companies with studious care, and should be strictly construed, against the insurer, and liberally in favor of the insured, when invoked by an insurance company t-o- limit or avoid liability. No intendment will be indulged to limit or avoid its liability.” Penn. Fire Ins. Co. v. Hughes, 108 Fed. R. 497, 550.
This rule has been followed and approved by the Supreme Court of the United States. London & Liverpool & Globe Ins. Co. v. Kearney, 180 U. S.
If no intendment is to be indulged in favor of the company to aid or avoid its liability then it is clear that the use of the words “to be occupied” must be taken as an expression of intention to waive the vacancy clause by the- defendant.
There is another reason why the defendant should be held to have waived this vacancy clause and to be estopped from claiming a forfeiture on its account. Under the law the plaintiff *18Is presumed to know and understand the contents of the policy although, it is written and printed in a language she did not. understand and it does not appear that its terms were interpreted or ’explained to her. Certainly the same presumption is binding on the defendant and if it did not avail itself of the rights reserved for its benefit, it should now be estopped from claiming a forfeiture. The policy provides that the company may terminate it by giving five days notice, also “if this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except when this policy is cancelled by this company by giving notice it shall retain only the pro rata premium.” If as contended by the defendant the policy became void by reason of the building haring remained unoccupied for ten days, it “became void or ceased” on the 14th day of January, six days before the fire. Was not the defendant bound under the terms of the policy to return to the plaintiff or tender to' her the unearned premium and demand the surrender of the policy? It seems to me that the provision of the policy above quoted was imperative and demanded action on the part of tire defendant provided it did ■not wish to waive a forfeiture on the grounds of vacancy and unoccupancy. Flaring failed to act or claim a forfeiture, although there was ample opportunity for doing so, until after the fire surely fair dealing and common honesty would demand that it be denied the privilege of now claiming the forfeiture. (Moore v. Niagara Fire Ins. Co., 199 Pa. St. 49; 48 Atl. 869 at p. 872.) There was no' error in the ninth instruction and the exception should be overruled.'
a ' On another proposition my opinion is at variance with that of the majority, i. e., whether or not the contract was entire'or divisible. As is said in the majority opinion there is on this question “an irreconcilable conflict of authority.”
’ There is one view of the question'that might be added to those cited in the opinion, i. e., that presented by the Supreme Cofu’t of *19Arkansas holding" that where the consideratoin was a gross sum and several buildings were insured for separate amounts the contract was entire aiid not separable; that if one of the buildings were occupied and the other vacant the terms of the policy were satisfied and the insured could recover the full amount of the loss. McOneeny v. Phoenix Ins. Co., 52 Ark. 257 (5 L. R. A. 744).
The Supreme Court of New York says: “Whatever the rule may be elsewhere, it is settled in this state that where insurance is made on different kinds of property, each separately valued, the contract is severable, even if but one premium is paid and the amount insured is the sum total of the valuation.” Pratt v. Ins. Co., 130 N. Y. 206.
The Supreme Court of Missouri said relative! to the words “this entire policy shall be void,” etc.: “The addition of the word ‘entire’ given its utmost latitude, could not avoid any more than the whole policy, hence it added nothing to the policy. Forfeitures are not favored in the law and will not be enforced if any reasonable interpretation can be made which will prevent it. No reason is given here why a forfeiture should be enforced, except the insertion of the word ‘entire’ into the policy, * * * Holding, then, as we do, that this was a divisible contract, it results that the legal effect is the same as if two distinct and separate policies were issued, and SO' reading the contract, we do not reject the word ‘entire’ at all, but apply it to that policy or portion of this policy which the insured has forfeited by the change of title', to which alone this clause refers, and it avoids that ‘entire’ policy, and not the policy in which no condition or warranty has been broken. This construction logically follows from the divisibility of the contract, and best accords, with fair dealing, and the presumed intention of the parties.” Trabue v. Dwelling House Ins. Co., 121 Mo. 86.
The Supreme Courts of Ohio, Indiana, Kansas, Kentucky, Nebraska and Virginia agree with that of New York and Missouri, that an insurance contract like the one under consideration is severable.
Coleman v. New Orleans Ins. Co., 49 Oh. St. 310; Continental Ins. Co. v. Chew, 11 Ind. Appeal 330; (38 N. E. 417); German Ins. Co. v. York, 48 Kan. 488 (29 Pac. 586); Phoenix *20Ins. Co. v. Laurence, 4 Met. (Ky.) 9; Conn. Fire Ins. Co. v. Tilley, 88 Va. 1024 (14 S. E. 851).
■ These questions are before this court for the first time and the law in this jurisdiction is to be now announced and the proper rules of interpretation to be applied to insurance policies are to be determined. The decisions of the state courts are at variance and conflicting but in the federal courts a uniform rule seems to have been adopted and followed, at least by the Circuit Court of Appeals for the Eifth Circuit, and the United States Supreme Court. These rules it seems to me are mandatory and controlling in this court. If policies are to be most strictly construed against the insurer, and forfeitures are not to' be favored and no intendment are to be indulged to limit or avoid the liability of the insurer, the conclusions I have reached on the two questions discussed cannot be avoided. (1) The defendant must be held to have waived the forfeiture on account of nonoccupancy; (2) and even if it did not waive the right to claim a forfeiture on this account, the policy is severable and the vacancy of one of the buildings does not bar the right to recover the value of the other, i. e., the one that was occupied at the time of the loss.