(dissenting). Plaintiff testified that he informed the defendant by letter of the fact that he had rented the property to Cascio, and that thereafter the company accepted payment of premium notes without objections to the change of possession. The company is therefore estopped to claim a forfeiture on account of that change, and the policy should be treated as one on property owned by plaintiff in the possession of Cascio, his bailee. When personal property is insured in the possession of a bailee of the assured, a change of possession from one bailee to another of the same kind is not such a change in the “use, occupation or possession” as avoids the policy. Smith v. Phoenix Ins. Co., 91 Cal. 323; Farmers’ Fire Ins. Co. v. Baker, 94 Md. 545; Thompson v. Phoenix Ins. Co., 136 U. S. 287.
The Indiana case relied on in the opinion of the majority was one where the interest of the assured in the property had been changed by the retirement of one partner from the firm. That presents an altogether different question from the one in this case. The Dewberry case (Planters’ Mut. Ins. Assoc, v. Dewberry, 69 Ark. 295) was also different in that there was an entire change in the character of the occupancy from that of the owner as a dwelling place to that of a tenant. Here the change was only from one bailee to another.
It seems to me that the conclusion of the majority entirely ignores and fails to give any force to our statute which provides that “substantial compliance with the terms, conditions and warranties of such policy, upon the part of the assured, * * * shall be deemed sufficient and entitle the plaintiff to recover in any such action.” Kirby’s Dig., § 4375a.
I cannot imagine a state of case to which this statute would more fitly apply than to the present one where there has been merely a change of possession from one bailee to another, no increase of risk being shown. If this statute had been in force at the time the loss occurred in the Dewberry case, it should have changed the result in that case.
Frauentpial, J., concurs in the dissent.