Christensen v. Royal Ins. Co.

• Decision Date: 21 April 1937
• Docket Number: 7986
• Citation: 272 N.W. 820,65 S.D. 246
• Parties: SAM CHRISTENSEN, Respondent, v. ROYAL INSURANCE COMPANY OF LIVERPOOL, Appellant.
• Court: South Dakota Supreme Court

65 S.D. 246

272 N.W. 820

SAM CHRISTENSEN, Respondent,

v.

ROYAL INSURANCE COMPANY OF LIVERPOOL, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Fall River County, SD Hon. H. R. Hanley, Judge #7986—Reversed H. M. Lewis, Hot Springs, SD L. .E. Waggoner, R. C. Riter, Sioux Falls, SD Attorneys for Appellant. W. P. Rooney, L. B. Adams, Hot Springs, SD Attorneys for respondent. Opinion filed Apr 21, 1937

SMITH, J.

Plaintiff brought action on a policy insuring against loss and damage by fire. A special verdict and judgment were entered for defendant. On motion by plaintiff, the trial court entered an order granting a new trial predicated on an assumed error at law. Defendant appeals from the order granting a new trial. Disposition here turns upon the construction of provisions of the policy dealing with unoccupancy of the insured property.

The policy was issued to insure plaintiff against loss and damage by fire to a dwelling situated in Hot Springs, S.D. The term of the policy was for three years, extending from September 25, 1932, to September 25, 1935. The fire occurred on the 23d day of October, 1934. To a complaint on the policy in ordinary form, defendant interposed a defense of a breach of the conditions of the policy against unoccupancy.

In addition to the provision dealing with unoccupancy contained in the statutory form of policy (Rev. Code 1919, § 9199), this policy contained an additional provision as follows:

“Permission granted for the within described premises to ‘be and remain vacant for a period not exceeding sixty (60) days at any one time, the term ‘vacant’ being construed to mean an empty building devoid of personal habitation; or to be and remain unoccupied for a period not exceeding six (6) months at any one time, the term ‘unoccupied’ being construed to mean a building that is entirely furnished, but with personal habitants temporarily absent.

“Applying against the fire and lightning hazard only, if the premises are vacant for a period exceeding sixty (60) days, or unoccupied for a period exceeding six (6) months, at any one time, this policy is void unless a special form of permission therefor is attached hereto.”

Subsequent thereto in consideration of an additional premium, a rider or additional provision was attached to the policy, the material provisions of which read as follows: “Permission is hereby granted for the premises described in this policy to remain unoccupied from the 14th day of March, 1934, to the 14th day of September, 1939.”

At the trial, the plaintiff’s wife testified as follows: “When I went out of the big house, (the property described in the policy) dad and Earl (plaintiff’s son) slept there for a little while; have been out of there for about a year and three months. ... I was in Chadron a year and some months. ... I don’t know whether we have lived in the big house since July, 1932, or not. I don’t know if there have been lights, water, and telephone in there since 1932, but I don’t think so.”

The plaintiff testified as follows: “At the time this vacancy permit was put On my wife was in Chadron, Neb. ... I lived over the store part of the time. During week days I was there all the time and ate in the restaurant below. I lived during the week days Over the store and on Sundays sometimes I would go over and sleep at the house that was burned. We had a four-room apartment over the store. My son, (Earl) his wife and I slept there. My wife slept there when she was in town. I continued sleeping over the store six days a week until the time I went to California. ... From March when I got the vacancy permit, until my wife came back from Chadron, I didn’t sleep in the house at all.”

Conflicting testimony was received dealing with the use and Occupancy of the insured premises just prior to the expiration of the period described in the special rider and between that date and the date of the fire.

In its instructions, after an instruction defining “occupancy,” to which no exception was taken, the court by general instructions and by a special interrogatory submitted the following question to the jury: “Were the premises described in the policy of insurance, Ex. No. 1, occupied by the Christensens, as the term occupancy has been explained for you in these instructions, at any time during the six months period next preceding October 23, 1934?”

The jury returned a negative answer to the special interrogatory, and judgment was entered for defendant. Upon motion, the trial court entered an order granting a new trial, in which, after reciting the provisions of the policy, it stated its reason for so doing as follows: “The undisputed evidence shows that the fire in question occurred on October 23rd, 1934; that the vacancy permit executed by defendant company, and attached to the policy, expired on the 14th day of September, 1934, and that the date of the expiration thereof (as shown by Exhibit I) there still remained a period of six (6) months for the building in question to remain unoccupied, as provided in the uniform standard permits and clauses contained in the policy, and there is no evidence whatsoever in the record proving or tending to prove that the building in question had remained unoccupied for the additional period of six months, but the undisputed evidence shows that the fire occurred within the period of six months allowed by the policy itself for the building to remain unoccupied.”

Of the specifications of error, the only one urged to this court by the...