Continental Ins. Co. of New York v. Dunning
| Decision Date | 09 May 1933 |
| Parties | CONTINENTAL INS. CO. OF NEW YORK v. DUNNING et al. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 20, 1933.
Appeal from Circuit Court, Crittenden County.
Action by Leslie Dunning and another against the Continental Insurance Company of New York. Judgment for plaintiff, and defendant appeals.
Reversed.
Gordon Laurent & Ogden and T. M. Galphin, Jr., all of Louisville and Nunn & Waller, of Paducah, for appellant.
Vert C Fraser, of Providence, for appellees.
The decisive question presented by this appeal is the right of the insured to recover on an insurance policy containing an agreement and stipulation that, if any of the buildings described are now vacant, unoccupied, or uninhabited, or shall become vacant, unoccupied, or uninhabited for a period exceeding ten days, without written consent of the company, this policy shall be null and void.
Effie Dunning and Leslie Dunning owned a tract of land situated in Crittenden county, Ky. On the 17th day of September, 1928, the Continental Insurance Company of New York, for a premium of $62.70, payable in installments, $15.68 payable on the 1st of October, 1929, and each year thereafter until paid in full, issued and delivered to Effie and Leslie Dunning a policy insuring them against loss by fire, $650 on the dwelling house; $50 on smoke and produce house; $300 on barn; $50 on grain and seed; and $50 on hay and feed while in the barn or used on the premises. The barn and other buildings were used in connection with the dwelling. All of the insured property was located on a 75-acre farm.
Subsequent to the issuance of the policy, the valuation of the property and the premium were reduced by consent of the parties. The value of the property after it was reduced was $552 on the dwelling; $40 on the smoke and produce house; $240 on the barn; $50 on grain and seed; and $50 on hay and feed. The installment premium was reduced to $12.59. At the time the policy was issued, the property was occupied by a tenant who moved off September 17 or 18, 1931. Leslie Dunning at that time was in the employ of the Illinois Central Railway Company, and had a run on that road, and was away from home. His family was composed of himself and wife, Effie Dunning. It was their intention to move into the dwelling and occupy it as their home. Mrs. Dunning carried and stored in the dwelling a dining table, chairs, two small tables, rugs, linens, a few dishes, and other things. The tenant's wife was a sister of Mrs. Dunning, and, when she and her husband moved, they left some of their household and kitchen furniture. Mrs. Dunning's sister and her husband moved to property about one-half mile from the dwelling, barn, and outhouses owned by Leslie and Effie Dunning. Mrs. Dunning's mother made her home at Blackford, Ky. Dunnings owned cows and chickens, hogs and calves, which were kept on the premises on which the buildings were located. Mrs. Dunning went to the farm and the dwelling and other buildings every day, where she spent the greater portion of her time looking after the cows, chickens, hogs, and calves, and while at the dwelling she would can fruit and vegetables. Her sister also put up canned fruit at the dwelling owned by the Dunnings. Mrs. Dunning watched the place and took care of the house and things which they kept in the house and on the farm. She spent with her nephew two nights in the dwelling between September 17th or 18th and the date on which the property was destroyed by fire, on the night of October 23d. One of the nights she remained at the dwelling was about a week after her sister and husband moved off; the second night was about the 1st of October. From the 1st of October until the 23d of October, the night on which the property was burned, the property was continuously unoccupied at nights, and during the day only at such times as she was present, looking after the cows, chickens, hogs, and calves, and canning fruit and vegetables, except on Sunday before the fire Mrs. Dunning and some of her friends were at the dwelling house and prepared and ate dinner. The day before it was destroyed she spent the afternoon at the dwelling house cleaning. The fire occurred shortly after midnight on October 23d. No one was there at the time of the fire. Neither of the Dunnings nor any one else had slept in the dwelling from October 1st to October 23d. Neither the cause nor the origin of the fire is disclosed by the evidence. The facts showing the occupancy or nonoccupancy of the property are not disputed. The company failing to pay the policy, this action was instituted to recover the reduced valuation as we have stated it.
Among other defenses, the company interposed the provision, rendering the policy void if it was unoccupied or uninhabited for ten consecutive days next before the fire. A trial before a jury resulted in a verdict in favor of the Dunnings for the full amount of the policy. The insurance company is here insisting that, accepting the proven facts, the property was unoccupied or uninhabited, within the meaning of these terms as they are used in the policy.
Where a policy of insurance contains no provision respecting the property becoming vacant, unoccupied, or uninhabited, but carries a clause prohibiting the increase of the risk, in such a case, if the property becomes vacant, unoccupied, or uninhabited, and thereby the risk is increased, then the insurer must allege and prove that the risk was so increased to avoid the policy on such a ground. But, where the policy carries a clause providing a forfeiture if the property becomes vacant, unoccupied, or uninhabited, without the consent of the insurer, for ten days, or any other definite period of time, it is not required to allege or prove that the status increased the risk or hazard. A like provision of a policy has often been held by this court as binding on the parties, and, when relied on as a defense, if the facts show that the property was unoccupied or uninhabited ten consecutive days next before its destruction by fire, it is our duty to enforce such a provision according to its terms. Burner's Adm'r v. German-American Insurance Co., 103 Ky. 370, 45 S.W. 109, 20 Ky. Law Rep. 71; Robinson v. Aetna Ins. Co., 38 S.W. 693, 18 Ky. Law Rep. 865; Thomas Trustee, v. Hartford Fire Ins. Co., 53 S.W. 297, 21 Ky. Law Rep. 914; Continental Ins.
Co. v Simpson, 220 Ky. 167, 294 S.W. 1048. The meaning of the terms "vacant," "unoccupied," or "uninhabited" is a question of law for the court, but whether at the time of the destruction of a building by fire it is "vacant," "unoccupied," or "uninhabited" is one of fact for the determination of a jury. Schuermann v. Dwelling House Ins. Co., 161 Ill. 437, 43 N.E. 1093, 52 Am.St.Rep. 377. Each case must be determined on its own facts and circumstances. A building may be vacant within the meaning of the term "vacant," though "far from being empty of everything but air." Robinson v. Mennonite M. F. Ins. Co., 91 Kan. 850, 139 P. 420, 422. "Vacant" is not synonymous with the term "unoccupied." However, the terms may be, and often are, treated as synonymous. Covey v. National U. F. Ins. Co., 31 Cal.App. 579, 161 P. 35. It is not necessary that property be both vacant and unoccupied, without the consent of the insurer, to entitle the insurer to avail itself of a condition of the policy providing a forfeiture if it becomes vacant, unoccupied, or uninhabited. Cyclopedia of Insurance Law (Couch) vol. 4,§ 970f, p. 3415. The term "unoccupied" as used in an insurance policy must be construed...
To continue reading
Request your trial