Cook v. Cont'l Ins. Co.

• Decision Date: 31 October 1879
• Citation: 70 Mo. 610
• Parties: COOK, Appellant, v. THE CONTINENTAL INSURANCE COMPANY.
• Court: Missouri Supreme Court

70 Mo. 610

COOK, Appellant,

v.THE CONTINENTAL INSURANCE COMPANY.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

Snoddy & Short for appellant, cited in argument Kelly v. Home Ins. Co., 2 Cent. Law Jour. 478; Ellington v. Moore, 17 Mo. 424; Poor v. Humboldt Ins. Co., 125 Mass. 274; s. c., 7 Ins. Law Jour. 874; Hartford Ins. Co. v. Smith, 3 Col. 422; s. c., 7 Ins. Law Jour. 140; American Ins. Co. v. Padfield, 78 Ill. 167; s. c., 4 Ins. Law Jour. 893; Chamberlain v. Ins. Co., 55 N. H. 249; Hill v. Equitable Fire Ins. Co., (N. H. Sup. Ct. 1877,) 6 Ins. Law Jour. 314; Harrington v. Fitchburg Mut. Fire Ins. Co., 124 Mass. 126; s. c., 6 Ins. Law Jour. 618; Livingston v. Stickles, 7 Hill 255; Catlin v. Springfield Ins. Co., 1 Sumn. 434; Breasted v. Farmers' L. & T. Co., 4 Seld. 305; Ins. Co. v. Slaughter, 12 Wall. 404; Rann v. Home Ins. Co., 59 N. Y. 387; Reynolds v. Com. Ins. Co., 47 N. Y. 597; Hynds v. Schen. Ins. Co., 11 N. Y. 554; Commercial Ins. Co. v. Robinson, 64 Ill. 265.

G. G. Vest and Phillips & Jackson for respondent.

HENRY, J.

This is an action on a policy of insurance issued to plaintiff by defendant on the 14th day of February, 1873, on plaintiff's dwelling house in the city of Sedalia, by which defendant, in consideration of $45 paid by plaintiff, agreed to make good to her all such immediate loss or damage not exceeding $2,000, as should happen by fire to said house from the 14th day of February, 1873, at 12 o'clock noon to the 14th day of February, 1874, at 12 o'clock noon. On the 26th day of October, 1873, said property was totally destroyed by fire, and this action was to recover of defendant the amount for which the property was insured. A motion to set aside non-suit taken with leave was overruled, and plaintiff appealed. It was stipulated in the policy that: “If the premises become unoccupied without the assent of the company indorsed hereon, then, and in every such case, the policy shall be void.” What is the meaning of the term ““unoccupied” as employed in that clause of the policy? This is the principal question for determination. About two weeks before the fire the plaintiff went to Kansas City, Msssouri, to reside, and lived there until after the fire. She shipped a car load of her furniture to the latter place, and left about $300 worth in the house, and instructed one Barnard to sell it, except a bed-room set, and also to rent the house. Joseph Southwick was left in possession, with instructions to remain in possession and sleep in the house until he could rent it. DeLaney was to rent the house. Southwick went to Kansas City three or four days before, and was there when the fire occurred. He left no one in the house, but told DeLaney, with whom he left the keys, except the key of the room he had slept in, to take charge of the house and rent it if he could before he returned. The above is the testimony of plaintiff and Southwick. Her evidence is somewhat contradictory as to whom she gave authority to let the house.

On these facts the question arises, was the house unoocupied when it was burned? If it was, she was not entitled to recover. “Occupation of a dwelling house is living in it.” Paine v. Ag. Ins. Co., 5 N. Y. S. C. R. (Thomp. & Cook) 619. “A fair and reasonable construction of the language “vacant and unoccupied' is, that it should be without an occupant--without any person living in it.” 78 Ill. 169. Speaking of a dwelling house and barn, Colt, J., in Ashworth v. Builders Ins. Co., 112 Mass. 422, observed: “Occupancy, as applied to such buildings, implies an actual use of the house as a dwelling place, and such use of the barn as is ordinarily incident to a barn belonging to an occupied house, or at least something more than a use of it for storage. The insurer has a right, by the terms of the policy, to the care and supervision which is involved in such an occupancy,” citing Keith v. Quincy Mutual Fire Ins. Co., 10 Allen 228. In Wood on Insurance, p. 164, the above observations of Colt, J., are quoted and approved. In Paine v. Ag. Ins. Co., 5 N. Y. S. C. 619, it was said, that “occupation of a dwelling house is living in it, not mere supervision over it, and while a person need not live in it every moment, there must not be a cessation of occupancy for any considerable portion of time.” On page 181, Mr. Wood says: “A practical occupancy consistent with the purposes for which it was insured is intended, and an occupancy that measurably lessens the vigilance and care that would be incident to its use for such purposes, is not an occupancy within the meaning of the term as thus employed.” Wood on Fire Ins. In Whitney v. Black River Ins. Co., 9 Hun (N. Y.) 39, it was held that “the words ‘vacant and unoccupied’ must be construed with reference to the kind of structure or building on the premises. Occupation of a dwelling house is living in it.” In Keith v. Quincy Ins. Co., 10 Allen 228, the suit was on a policy insuring a trip-hammer shop and machinery therein, and the policy contained a provision that if the building remained unoccupied for the period of thirty days without notice to the company, the policy should be void.” The facts were, that for more than thirty days before the loss, the shop was unoccupied for the business, but the tools and machinery were there, and the plaintiff's son went through the shop almost every day to see that everything was right. And an instruction that these facts did not constitute occupancy but that some practical use must have been made of the building, was approved by the Supreme Court of Massachusetts. Counsel for appellant say that this case has been qualified, but as we have seen in Ashworth v. The Builders Ins. Co., 112 Mass. 422, it was cited in support of the doctrine enunciated there.

Applying the doctrines of the above cited cases to this, it is clear that, within the meaning of the clause under considerations, the premises insured...