Agricultural Ins. Co. of Watertown, N.Y., v. Hamilton
| Decision Date | 06 December 1895 |
| Parties | AGRICULTURAL INS. CO. OF WATERTOWN. N. Y., v. HAMILTON. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Harford county.
Action by James K. Hamilton, use of J. Thomas C. Hopkins and another, against the Agricultural Insurance Company of Watertown, N.Y. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before ROBINSON, C.J., and BOYD, FOWLER, McSHERRY, JJ.
Frank C. Gorrell and Thomas H. Robinson, for appellant.
J. T C. Hopkins, Wm. H. Harlan, and S. A. Williams, for appellee.
On the 11th of June, 1889, the appellant, a fire insurance company wrote a policy of insurance upon the dwelling house, barn and personal property of the appellee, insuring the same against loss by fire for the term of three years. Upon the expiration of this policy, in 1892, a second one for the same amount, for another term of three years, and covering the same property, was issued by the same company. At the time the first policy bears date, and continuously on from then until the month of December, 1892, the dwelling house covered by the policy was actually occupied by the appellee and his family as a place of abode; but in December, 1892, he and his family moved out of the house, and went into and occupied another dwelling some few hundred yards away, and located on the opposite side of a public highway. He took with him nearly all his furniture, though he left in the house from which he moved a few beds and some trifling household articles, a trunk containing clothing, and some provisions stored in a pantry. He and his family ceased to live in the house mentioned in the policy. On the 27th of December, 1893, the house from which he moved, and which was insured under the policy issued by the appellant, was totally destroyed by fire. Due proof of loss was filed, but the company refused to pay the loss, and based its refusal upon a ground which will be stated later on. Thereupon suit was brought on the policy. When both policies were issued, the property was subject to a mortgage held by Messrs. Hopkins & Harlan, to whose use the suit was entered just before the trial in the court below, and across the face of both policies there were written in red ink the words "Loss, if any, payable to mortgagees, as interest may appear." Among other terms and conditions contained in the policy sued on, it is expressly provided that "this entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days." For nearly three months after the appellee removed from the insured dwelling no person occupied the house at all; and on March 6, 1893, permission was granted to the insured to remove the household furniture, family provisions, wearing apparel, and organ, as insured under the policy, into another dwelling, "the insurance to cease at the former, and apply at the latter, location from" the date just named; but there was no agreement, memorandum, or assent indorsed upon or added to the policy that the dwelling house from which the appellee had previously removed should remain vacant or unoccupied at the risk of the insurer. During a portion of the time from March, 1893, down to the fall of the same year, two and sometimes three of the workmen employed by the appellee upon his farm and in his canning business slept in the house described in the insurance policy, but they did not occupy it during the daytime, and did not cook or eat their meals there. Within a week before the destruction of the house by fire, a man in the service of the appellee spent one night in the house; and occasionally, while the hands slept there, one of the sons of the appellee also slept in the house. During the whole period of time intervening between December, 1892, when the appellee moved out of the house, and December 27, 1893, when the house was burned, the appellee's wife went daily to the house to get provisions stored and kept there. For a portion of this time, a large number of cases of canned goods, manufactured by the appellee, were stored in the house; and at the time of the fire, in addition to the trifling articles of household furniture, the clothing, and provisions that were there, some 50 odd bushels of wheat were stored in one of the first-floor rooms. There is no proof as to how the fire originated. When the evidence closed, numerous prayers for instructions were presented by the defendant, but as the fourth raises the controlling question in the case, and embodies the ultimate ground upon which the company resists payment of the demand made upon it, we need neither examine nor consider any of the others. The fourth prayer is in these words: "That there is no evidence in this case that the dwelling house that was destroyed by fire, as testified to, was occupied as a dwelling, within the proper construction of the policy of insurance offered in evidence in this case, on the 27th day of December, 1893, or that it had been so occupied at any time within ten days preceding said fire, and that no agreement permitting the property to be vacant and unoccupied was indorsed or added to the policy of insurance offered in evidence, and their verdict must be for the defendant." This, together with several other prayers, was rejected. The verdict and judgment were against the insurance company, and it has brought up this appeal.
The distinct inquiry is thus presented for the first time in this court as to what is the meaning of the terms "vacant or unoccupied," as applied to dwelling houses under fire insurance policies embodying a forfeiture clause of the kind we have said the policy sued on contains. In Kelly's Case, 32 Md. 421, and in Weaver's Case, 70 Md. 539, 17 A 401, and 18 A. 1034, this court repudiated the principle of interpretation adopted in some cases that insurance contracts are to be construed most strongly against the underwriter, and adopted the sounder view that the intention of the parties, as gathered from the whole instrument, must prevail. What, then, is the obvious meaning of the terms "vacant or unoccupied" as applied to a dwelling house which, when insured, was inhabited or lived in? A dwelling house means a place of abode; a habitation; a house occupied or intended to be occupied as a residence. Occupation of a dwelling house primarily implies a living in it; and consequently a fair and reasonable interpretation of the words "vacant and unoccupied," when used to describe a dwelling house, would seem to be that the house is without an occupant,--without some person living in it. An actual use of the house as a place of abode or habitation is what the insurer contemplates and what the policy designs to secure. When the occupant of a dwelling house moves out with his family, taking part of his furniture and nearly all his wearing apparel, and makes his place of abode elsewhere, such dwelling house, while thus deserted, must be regarded as unoccupied,--that is, vacated,--if the word be given its natural and ordinary signification. It is the very situation against the hazards of which the company clearly undertook to guard itself, by an express stipulation and condition inserted in the very contract upon which the suit is founded. Obviously, the word "unoccupied," as applied to a dwelling house in a fire insurance policy, signifies "not used as a residence"; and consequently a designated tenement becomes unoccupied when it is no longer used for the accustomed and ordinary purposes of a dwelling or place of abode. Hence, no matter what other use it may be devoted to, so long as it ceases to be a place...
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