England v. Westchester Fire Ins. Co. of N.Y.

• Decision Date: 22 March 1892
• Citation: 81 Wis. 583,51 N.W. 954
• Parties: ENGLAND ET AL. v. WESTCHESTER FIRE INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

81 Wis. 583

51 N.W. 954

ENGLAND ET AL.

v.WESTCHESTER FIRE INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

March 22, 1892.

Appeal from circuit court, Eau Claire county; E. B. BUNDY, Judge.

Action by William H. England and George W. Thomas against the Westchester Fire Insurance Company of New York on a policy of insurance. Verdict for plaintiffs by direction, and judgment thereon. Motion for new trial denied. Defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover $1,000, the amount of a policy of insurance issued June 14, 1890, to the plaintiffs on a certain barn situated in the city of St. Paul. The policy was issued without previous written application, survey, plan, or description of the property, and contained the following stipulations: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the hazard be increased by any means within the control or knowledge of the insured, * * * or if any change other than by the death of the insured take place in the interest, title, or possession of the subject of insurance, * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days.” The barn, at the time the policy was issued, was vacant and unoccupied, and so continued until the time of the loss,--August 22, 1890. No testimony was offered or introduced showing or tending to show that at the time of the issuing of the policy, or at any time previous to the loss, the defendant had notice that said premises were vacant or unoccupied, or of any consent that the same should so remain vacant and unoccupied, or any waiver of the condition of the policy in regard thereto. The defense was that at the time of the alleged loss the premises and building were unoccupied, and had been vacant and unoccupied for more than 10 days prior thereto, without the knowledge or consent of the defendant, and that no agreement or consent thereto had been indorsed upon or added to the policy. At the close of the testimony the defendant moved the court to direct a verdict in its favor. This motion was denied, and the court directed the jury to find a verdict for the plaintiffs for the amount of the policy. After the entry of the verdict the defendant moved to set it aside, and for a new trial, but the motion was overruled by the court, and judgment was entered on the verdict in favor of the plaintiffs and against the defendant for the amount of the policy and costs, from which the defendant appealed.L. A. Doolittle and R. W. Barger, for appellant.

Wickham & Farr and Baker & Helms, for respondents.

PINNEY, J., ( after stating the facts as above.)

The liability of the defendant depends upon the proper construction of the condition contained in the policy issued by it, that it should be void if the barn described in it, “whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days,” unless otherwise provided by an agreement indorsed on or added to the policy. The premises were vacant and unoccupied at the date of the policy, and so remained without the knowledge or consent of the company until the loss in question occurred. The clause, “whether intended for occupancy by owner or tenant,” was plainly intended to give the same effect to non-occupancy or failure to use the building, arising from the act or omission of a tenant, upon a policy issued to the owner, as if it occurred by reason of the act or omission of the owner himself. The substance of the warranty contained in the policy, which was continuing in its nature, was aimed not against mere vacancy or non-occupancy existing at any particular period,--whether at the date of the policy or at any subsequent time,--as affecting the risk, but against the existence of such a condition of the building, continuing for 10 days at any time after the policy was issued. If the building was vacant and unoccupied at the date of the policy, the insured, within 10 days, might use and occupy it, so as to save the policy. No good reason can be suggested why vacancy or non-occupancy should be attended with any greater effect if it existed at the date of the policy than if occurring at any subsequent period, when, to be effective as a breach of warranty and consequent forfeiture, it was necessary it should continue for 10 days. We think that by a fair grammatical construction of the language the clause, “and so remain for ten days,” applies as well to the present as to the future condition of the property. Any other construction seems foreign to the intention of the parties, as manifested by the language used, and would result in making the policy void ab initio,--a construction to be avoided if the language is reasonably susceptible of any other meaning. The language of the policy should not only be construed most strictly against the insurer who has issued it, and in favor of the insured, but so as to render the contract valid and operative. Kircher v. Insurance Co., 74 Wis. 473, 43 N. W. Rep. 487, and cases there cited; Darrow v. Family Fund Soc., 116 N. Y. 544, 22 N. E. Rep. 1093; Coyne v. Weaver, 84 N. Y. 386. If the construction we have given to the policy is correct, then the clause in question was violated by the building insured under it remaining vacant and unoccupied for 10 days, and the consequence is that the policy became void, and no recovery can be had on it.

On behalf of the respondents it is claimed that, as the premises were vacant and unoccupied at the date of the policy, it is to be...