On Petition 'for Rehearing.
Lotz, J.The appellant has petitioned for a rehearing in this case, and, in support thereof, says:
‘ ‘ The court has not apprehended our position in this case. It is not a question of ultimate liability of the company. It is a question of procedure, a question of pleading. So far as the question is concerned, the question of the ultimate liability of the company is not involved. What we desire to present is, that under the pleadings in this case Mr. Glenn cannot recover, because there has never been any policy of insurance issued to him that he has declared upon.”
In this contention we do not concur, for a contract of insurance was entered into with Glenn. Counsel seem to overlook the fact that the assignment of a policy of insurance is the creation of a new contract between the company and the assignee, the terms of the old policy being the basis of the new contract. This proposition is abundantly sustained by authority. Moffitt v. Phenix Ins. Co., 11 Ind. App. 233; New v. German Ins. *371Co., etc., 5 Ind. App. 82; Continental Ins. Co. v. Munns, 120 Ind. 30. This court, in speaking of the assignment of a policy in Neto v. German Ins. Co., etc., supra, used this language : “Such consent is equivalent to the creation of a new contract between the assignee and insurer'according to the terms of the policy assigned. It is not strictly an assignment, but the creation of a new contract. ”
If we understand appellant’s further contention, it is that there can he no recovery upon the policy in favor of Glenn alone until it and the assignment are reformed; that there can he no reformation, for there is no ambiguity or uncertainty apparent; that the contract fully expresses the intentions of the parties, and there is no occasion for a reformation.
No reformation was asked or obtained, and if appellant’s position is correct, none could be decreed. Here again the appellant overlooks the fact that this action is based upon the new contract. The new contract was between the company and Glenn. Koerner and Zimmer had no interest in the new contract. The assignment apparently covered Zimmer’s interest in the realty and personalty. The averments in reference to the ownership were intended to show that the appellant waived certain conditions of the policy. 1c Issuing or continuing a policy of insurance with full knowledge by the company of existing facts, which, according to a condition of the contract, make it voidable, is a waiver of the condition.” Havens v. Home Ins. Co., 111 Ind. 90. If, as a matter of fact, the new contract embraced or covered other property than the personalty, the appellant cannot complain if the appellee only seeks to recover for the personal property destroyed. It is further contended that the policy or contract is an entirety and indivisible; that the assignment to Glenn rendered the contract *372void. The cases of Havens v. Home Ins. Co., supra, and Phenix Ins. Co., etc., v. Picket, 119 Ind. 155, are again urged upon our consideration.
Filed October 20, 1895.It occurs to us that appellant’s counsel misapprehend the force of those decisions. When the risk or property insured is an entirety, no change can be made in any part of it without affecting the risk on the whole. Thus, if a portion of it he mortgaged or additional insurance be taken upon it, or if the title or ownership of a portion be changed without the consent of the insured, such changes affect the entire risk, and cause a forfeiture. In these instances the hazard may be increased, and, being done without the consent of the company, renders the contract void.
But this principle has no application here, for it is alleged that the company consented to the assignment.
These conditions were conditions for its benefit, and it certainly had the power to waive them. No principle is better settled than .this. Here again appellant’s counsel overlook the fact that this is a contract directly between * Glenn and the company. Nothing has been done to increase the hazard under the new contract. Nothing appears in this case, which, in the remotest degree, calls for the application of the rule contended for.
Petition overruled.