Cumberland Valley Mutual Prot. Co. v. Douglas.

• Decision Date: 14 May 1868
• Citation: 58 Pa. 419
• Parties: The Cumberland Valley Mutual Protection Co. <I>versus</I> Douglas <I>et al.</I>
• Court: Pennsylvania Supreme Court

58 Pa. 419

The Cumberland Valley Mutual Protection Co. versus Douglas et al.

Supreme Court of Pennsylvania.

May 7, 1868.

May 14, 1868.

May 7th 1868.

Before THOMPSON, C. J., STRONG, READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Adams county: To May Term 1868, No. 27 D. Wills (with whom were J. B. Kennedy and J. McD. Sharpe), for plaintiffs in error, cited Girard Ins. Co. v. Stephenson, 1 Wright 293; Lycoming Ins. Co. v. Updegraff, 4 Id. 323; Phœnix Ins. Co. v. Cochran, 1 P. F. Smith 143; Cumberland Protection Co. v. Schell, 5 Casey 37; Franklin Ins. Co. v. Findlay, 6 Whart. 483; Citizens' Ins. Co. v. Marsh. 5 Wright 386; Curry v. Commonwealth Ins. Co., 10 Pick. 535; Stetson v. Massachusetts Ins. Co., 4 Mass. 330; Gammell v. Merchants' and Fire Ins. Co., 12 Cush. 167; Grant v. Howard Ins. Co., 5 Hill 10; Smith v. Mechanics' and Fire Ins. Co., 32 N. York 399; Parker v. Bridgeport Ins. Co., 10 Gray 202; Rice v. Tower, 1 Id. 426.

D. McConaughy (with whom were F. M. Kimmel, Stambaugh & Gehr and J. W. Douglas), for defendants in error, cited O'Neil v. Buffalo Ins. Co., 3 Comstock 122; Marsh on Insurance 347; Catlin v. Springfield Ins. Co., 1 Sum. 345; Somerset Ins. Co. v. McAnally, 10 Wright 41; American Ins. Co. v. Insty, 7 Barr 230; Johnson v. Berkshire Mutual Ins. Co., 4 Allen 338; Parson on Cont. 571.

The opinion of the court was delivered, May 14th 1868, by STRONG, J.

The subject insured was described in the policy as "a four-story building, basement stone, balance frame, fifty by one hundred feet; two wing buildings each about thirty-four by fifty feet, three stories high; also, two-story stone kitchen attached with one wing by a frame covered building." The application, which was agreed to make part of the policy, denominated the property as "dwelling-house, Caledonia Spring Buildings," and describes it, in other respects, substantially as it was described in the body of the policy. In neither is a word said respecting the occupancy of the building, or the uses to which it should be put. These are only to be inferred from its description. There is no representation that it was an occupied dwelling-house or building at the time when the insurance was effected, and no warranty that it should be occupied during the continuance of the risk. At least there is no such express representation or warranty. But the defendants below, now plaintiffs in error, contend that the description of the property as a dwelling-house amounted to a representation that it was tenanted, or occupied when the policy issued, and an engagement that it should continue to be occupied. Interpreting the contract of the parties thus, they offered to show on the trial that the plaintiffs had abandoned the buildings as a watering-place to be kept by themselves; that for three or four summers before the fire a Mrs. Cooper occupied them and kept boarders; that some three months before the fire she left the house and it remained vacant until it was destroyed by the work of an incendiary; that the plaintiffs were notified that the house was vacant, and that the doors and windows were found open; that the defendants had no knowledge of the fact that the property was vacant, and never consented to its remaining unoccupied; and that after Mrs. Cooper left the plaintiffs removed the most valuable part of their furniture and in so doing emptied the contents of straw beds into two of the rooms in the building. Such was the substance of the offer. It was rejected by the court, and we think correctly. It embraced two propositions, first, to prove that the building was left unoccupied with the knowledge of the owners, and without the knowledge or consent of the insurers, and, second, to prove that the defendants had been guilty of negligent conduct, either by themselves or by their servants or agents, though it was not alleged that the fire was a direct consequence of the negligence. Now, it is obvious that the evidence offered to prove that the building was left unoccupied was wholly immaterial, unless it tended to show either a change in the subject insured, or a breach of a warranty, or the falsity of a representation. It did neither. I think it has never been held that the insurance of a dwelling-house implies that it is a tenanted house, much less that it implies an engagement of the assured that it shall always be occupied while the risk taken endures. Policies often contain stipulations in regard to occupancy, but they are expressed plainly, and...