Alston v. The Old North State Ins. Co.
| Decision Date | 31 January 1879 |
| Citation | 80 N.C. 326 |
| Court | North Carolina Supreme Court |
| Parties | JAMES W. ALSTON and wife v. THE OLD NORTH STATE INSURANCE COMPANY. |
OPINION TEXT STARTS HERE
CIVIL ACTION to recover the amount of a Fire Insurance Policy, tried at January Special Term, 1879, of WAKE Superior Court, before Seymour, J.
The policy of insurance on which this action is brought was issued by the defendant corporation (whose principal place of business is Warrenton) on the 21st of July, 1876, to run for one year, and contains a clause making it void, if among other causes recited the insured premises “shall be used so as to increase the risk, or become vacant and unoccupied, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever within the control of the assured, without the assent of the company endorsed thereon.” The houses, dwelling and kitchen, had been insured for two years preceding, and it was then made known to defendant's agent who effected the insurance that they were intended for renting and were then rented to the tenant in possession. The tenant in possession when the last insurance was effected, under a contract of lease for that year, left on or about the 16th of December, 1876, and thence the premises remained unoccupied, though some of his furniture was still in the houses, until the 29th of January following, when the buildings were fired by an incendiary and destroyed. The plaintiffs had an agent to rent out the premises and he had not done so that year, but the vacancy was not known to plaintiffs until they visited the place (Manson, Warren county,) some five or six days before the burning.
The several issues submitted to the jnry were found for the plaintiffs, and the only question reserved by consent to be decided by the court was the effect upon the policy of “the failure of occupancy.” The court was of opinion that the vacancy and the failure to make it known and have it endorsed upon the policy with consent of the company, avoided the policy and plaintiffs could not recover. From which judgment they appealed.
Messrs. A. M. Lewis and Gilliam & Gatling, for plaintiffs .
Mr. D. G. Fowle, for defendant .
SMITH, C. J. (After stating the case.)
In this ruling we concur. It is made an essential condition of the contract that the property should not be exposed to the perils of an unoccupied tenement without the fact being communicated to the insurer and the consent of the company obtained and endorsed by an entry on the policy. This is a just and...
To continue reading
Request your trial
-
American Fire Ins. Co. v. Brighton Cotton Manuf'g Co.
...Co., 112 Mass. 422;Cook v. Insurance Co., 70 Mo. 610;Whitney v. Insurance Co., 9 Hun, 39; 1 Wood, Ins. (2d Ed.) 211; Alston v. Insurance Co., 80 N. C. 326;Miller v. Insurance Co., 13 Phila. 551; Woodruff v. Insurance Co., 83 N. Y. 133. But it is argued that a cessation of operations for a r......
-
Parmeter v. Williamsburgh City Fire Ins. Co.
...is avoided, though the furniture be left therein. Herman v. Adriatic Fire Ins. Co. 85 N.Y. 162, 39 Am. Rep. 644; Alston v. Old State Ins. Co. 80 N.C. 326; Fitzgerald v. Connecticut Fire Ins. Co. 64 Wis. 463, 25 N.W. 785; Joyce on Ins. Vol. 4, p. 3802. And merely leaving furniture where the ......
-
Winston-Salem Fire Fighters Club, Inc. v. State Farm Fire & Cas. Co., WINSTON-SALEM
...by fire while 'vacant or unoccupied' is a reasonable and enforceable provision. Greene v. tan Ins. Co., supra; Alston v. Old North State Ins. Co., 80 N.C. 326, 29A Am.Jur. 109; 45 C.J.S. Insurance § 555, p. Historically, provisions protecting an insurer against the extra hazard created by v......
-
Continental Insurance Company of New York City v. Kyle
...Padfield, 78 Ill. 167; Phoenix Ins. Co. v. Tucker, 92 Ill. 64; Fitzgerald v. Connecticut Ins. Co., 64 Wis. 463, 25 N.W. 785; Alston v. Insurance Co., 80 N.C. 326; Cook v. Continental Ins. Co., 70 Mo. And it is stated: "The same construction is given to the term 'vacant or unoccupied.'" Herr......