The
property insured is described in the policy as follows
"One and one-half story frame shingle-roof
dwelling." The policy contains the following provision
"This policy shall become void if any building hereby
insured, or containing the property insured, be or become
wholly or partially vacant or unoccupied, or occupied for
purposes not indicated in the written part of the
policy." At the time the policy was executed, the
dwelling was occupied by a tenant as a dwelling-house, and
the defendant pleaded that at the time it was destroyed, and
for several days prior thereto, the building was vacant and
unoccupied. When the plaintiffs had introduced their evidence
and rested, the defendant moved the court to direct the jury
to return a verdict for it. The motion was overruled. It
should have been sustained. The undisputed facts are that the
tenant moved out on Saturday, the twenty-sixth day of
September, 1886. The plaintiff lived about one-half mile from
the building, and she and her husband, on the next day after
the tenant moved out, went to and entered the building and
spent some time in examining it. On the next day the
plaintiff returned to the house, cleaned one of the rooms,
and continued to do so on each day thereafter, including
Friday, the first day of October. The house was destroyed by
fire on the last-named Friday night. When cleaning the house,
the plaintiff would come over in the morning, remaining until
noon. She would then go home, get her dinner,
come back in the afternoon, and then return home in the
evening. Plaintiff's father was working near the house,
and left at night therein an axe and grub-hoe. The house was
not occupied, except as above stated. The house was insured
as a dwelling, and the parties contracted that if it became
vacant, or ceased to be occupied as such, wholly or
partially, the policy should become void. This is the only
possible construction of the contract. Our province is to
construe and enforce it. The building, between the time the
tenant left it and the fire, clearly was not occupied as a
dwelling-house, and was at least partially vacant. The
plaintiff, when there, did not live or dwell therein, but her
home and residence was a half mile distant. Not only so, but
the house, to all intents and purposes, was vacant and
unoccupied within the true meaning and intent of the policy.
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