Hampton v. Hartford Fire Ins. Co.

• Decision Date: 20 November 1900
• Citation: 65 N.J.L. 265,47 A. 433
• Parties: HAMPTON et al. v. HARTFORD FIRE INS. CO.
• Court: New Jersey Supreme Court

47 A. 433

65 N.J.L. 265

HAMPTON et al.

v. HARTFORD FIRE INS. CO.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1900.

(Syllabus by the Court.)

Error to circuit court, Camden county.

Action by John W. Hampton and others against the Hartford Fire Insurance Company. Judgment for plaintiffs. Defendant brings error. Affirmed.

James Buchanan, for plaintiff in error.

G. A. Vroom and W. J. Kraft, for defendants in error.

FORT, J. The defendant is a fire insurance company. By its policy issued on the 20th day of August. 1896, in consideration of $15 premium paid, it insured the church property of which the plaintiffs are the trustees against loss or damage from fire for a period of five years from said date. The property insured was described in the policy as a "frame church building and addition attached thereto, with shingle roof, situate at the northeast corner of Haddon and Jefferson avenue, in the village of West Berlin, Camden county, N. J." The property was totally destroyed by fire on June 1, 1899, and due and timely proof of loss was made. Subsequently, on July 31, 1899, the defendant, by its general agents, notified the plaintiffs in writing, through their attorney, that they denied owing anything on said policy. Suit was instituted and the pleas filed set up: "(1) The church building was and became vacant and unoccupied, and so remained for upwards of ten days, without the consent in writing thereto of the said defendant being indorsed upon or added to said policy; (2) that the hazard was increased by means within the knowledge and control of the said plaintiff, and was so kept and continued until said loss by fire." We agree with the trial judge, as to the second plea, that there is no proof as to there being any hazard, within the contemplation of the policy, proven in the cause, unless it be the boarding up and locking of the church as was proven; but that would seem rather to be a precaution for safety than a hazard. However, this point is not raised in the brief of the defendant except in so far as the claim that the church was left vacant and unoccupied was a violation of the "hazard" clause of the policy. The defendant's counsel puts the issues tried very fairly in his brief when he says: "The defenses litigated upon the trial were: First, chat the building, for many weeks prior to the fire, was vacant or unoccupied, without the consent of the company; second, that by means of such vacancy or nonoccupancy the hazard was increased." It follows, of course, therefore, that if the first condition—vacancy or nonoccupancy—did not exist, the second defense fails. The attempt of the defense is to defeat the recovery in the case by the fact that a forfeiture has occurred, under the conditions of the policy, from the leaving of the premises vacant or unoccupied exceeding the 10 days allowed by the policy. Forfeitures of this class are not favored in the law. The rule as to them in our state is settled. Our courts say: "It has become a settled rule in the construction of contracts of insurance that policies of insurance will be liberally construed to uphold the contract; and conditions contained in them which create forfeitures will be construed most strongly against the insured and will never be extended beyond the strict words of the policy." Carson v. Insurance Co., 43 N. J. Law, 300; Snyder v. Insurance Co., 59 N. J. Law, 544, 37 Atl. 1022. The court will never seek for a construction of a forfeiture clause in a policy which will sustain it if one which will defeat it is reasonably deducible from the terms or words used to express it. Insurance Co. v. Maackens, 38 N. J. Law, 564, 572; Ripley v. Insurance Co., 29 Barb. 552; Rann v. Insurance Co., 59 N. Y. 387; 1 Joyce, Ins. § 220; Insurance Co. v. Walsh, 54 Ill. 164; May, Ins. (2d Ed.) § 170. We are not without a construction of the words "occupied" and "unoccupied" in this state. This court has defined these terms and their application to buildings insured by policies containing them as follows: "They are always to be construed with reference to the nature and character of the building, the purpose for which it is designed, and the use contemplated by the parties as expressed in the contract. The occupancy of a dwelling, of a barn, and of a mill is in each case essentially different in its scope and character. The term 'occupied' always implies a substantial and practical use of the building for the purposes for which it is intended, and as contemplated by the policy." Sonneborn v. Insurance Co., 44 N. J. Law, 220, 223. The same effect is given to these words by the New York court of appeals. Whitney v. Insurance Co., 72 N. Y. 117. As to a dwelling house, it being designed for occupancy by human beings, it is occupied when human beings habitually reside in it, and unoccupied when no one lives or dwells in it. Hartshorne v. Insurance Co., 50 N. J. Law, 430, 14 Atl. 615. The definition of "occupied," as applied to a dwelling, will not of course, cover a barn, a mill, a sawmill, a factory, music halls, theaters, or churches. If church buildings are kept for use for the purposes for which they are designed, and used as occasion presents and as the convenience of the congregation may require, and there is no intent shown to abandon them for the purposes of their use by the temporary periods of nonuser, even though those periods may...