Harper v. Stoddard County Mut. Fire Ins. Co.

• Decision Date: 22 June 1932
• Docket Number: No. 4936.,4936.
• Citation: 51 S.W.2d 534
• Parties: HARPER v. STODDARD COUNTY MUT. FIRE INS. CO.
• Court: Missouri Court of Appeals

51 S.W.2d 534

HARPER v. STODDARD COUNTY MUT. FIRE INS. CO.

No. 4936.

Springfield Court of Appeals. Missouri.

June 22, 1932.

Appeal from Circuit Court, New Madrid County; John E. Duncan, Judge.

"Not to be officially published."

Action by J. A. Harper against the Stoddard County Mutual Fire Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

R. Kip Briney and George Munger, both of Bloomfield, for appellant.

Gallivan & Finch, of New Madrid, and Wammack, Welborn & Cooper, of Bloomfield, for respondent.

SMITH, J.

This is an action at law upon a fire insurance policy, brought by the plaintiff originally in the circuit court of Stoddard county, but upon application of the defendant, a change of venue was had to the circuit court of New Madrid county, where a trial was had on October 23, 1930, resulting in a verdict and judgment for $2,000 for the loss of plaintiff's house and barn, being the total amount for which suit was brought. By proper steps for appeal the case has been lodged in this court.

Several assignments of error are alleged, but these are placed by us in four classifications First, that the house and premises were unoccupied at the time of the fire, and that under the provision of the policy vacancy of the premises voids the policy and defendant's demurrer should have been sustained; second, that the policy was void as to the defendant, because the property was encumbered by a deed of trust contrary to the provisions of the policy and contrary to the statements in the application made by the plaintiff in applying for the insurance; third, the court erred in giving instructions numbered 1 and 2 requested by the plaintiff; and, fourth, that error was committed in the admission of evidence.

The principal part of the evidence was directed to the point that the house was vacant at the time of the fire, and while it is practically conceded by the defendant that the barn had not been vacated, yet it contends that since the evidence shows that the residence was vacant, and that this being an indivisible policy, when rendered void as to one building it is void as to all. For this contention the defense relies on the case of Mitchell v. Home Insurance Company, an opinion by this court, reported 264 S. W. 69. We have no criticism now to make of the holding in that case, but because of the material difference in the facts in that case and in the facts in this, we think that case not authority for us to hold in this case that vacancy of the residence renders the policy void as to the entire policy.

The entire testimony in this case shows that the residence had been vacant for nine or ten days before the fire. The fire occurred on March 5, 1930, and totally destroyed the residence and barn. The policy provided that $1,300 would be paid for loss of the residence and $700 for loss of the barn.

On the policy, and a part of the policy, was printed a provision of the constitution which reads as follows: "Vacant buildings will not be insured and buildings occupied by tenants must be adjudged trustworthy. Any building destroyed by fire when unoccupied, the policy thereon is null and void unless vacant permit has been granted thereon."

There was no contention that a vacancy permit had been asked for or obtained. When the plaintiff was on the stand and being examined about the residence being vacant, he said: "Fred Harper is a fourth or fifth cousin of mine and he was my tenant up to the latter half of February 1930, living in the house and using the barn which was used in connection with the house. * * * Fred lived in the house till the latter part of February. I visited out there frequently. I had made arrangements for another tenant to move into the property. The new tenant of mine was George McCallester. I knew Fred was moving out but he still had some things in the house when it burned. * * * I had been on the premises almost every day before it burned and I was there at noon the day before the fire and there was not any body living in the house then. I did not think I needed to notify the company that Fred had moved to the Evans farm. I had no business to notify them and I did not notify them. I did not ask for a vacancy permit I did not aim for it to become vacant."

This testimony was offered as a part of plaintiff's case in chief. There was some evidence in chief that Fred Harper had left a bed, sewing machine, and some other things in the residence, and had permitted a man by the name of Snider to put some oats in one room of the residence before Harper had moved out, and that some of the oats were still there at the time of the fire. There was also testimony that the barn was used in connection with the residence, and that there was a lot of hay and feed belonging to Harper still in the barn.

On the question of occupancy of the residence the defendant offered quite a number of witnesses. When L. W. Tramell, secretary and treasurer of the defendant, was on the stand the following occurred:

"Q. Tell the jury what Mr. Harper said to the Board of Directors when the proof of loss was made there relative to whether he had any tenant in the house, living in the house at the time of the fire? A. Said he did not.

"Q. Did he say who had been living in the house before the fire? A. Yes, sir.

"Q. And who did he say? A. Fred Harper.

"Q. What did he say, if anything, about how long Fred Harper had been living in another house, and on another farm when the fire happened? A. He said something like ten days."

Another witness is quoted as saying: "Mr. Harper said that a man had moved out of the house but that another was expected to move in in a day or two."

Fred Harper was called and testified as follows:

"Q. You lived in the house that burned down up until a few days before it burned down, is that right? A. Yes, sir.

"Q. Where did you move to? A. I moved on Marion Evan's property.

"Q. And how far was that from where you had been living? A. About a mile and a half.

"Q. After you had moved into the Evan's place, did you and your wife or either of you occupy the former home down there, the house that burned, any more after that as a home? A. No.

"Q. You didn't? A. No, sir.

"Q. About how long after you moved to the Evan's house was it that the house you moved out of actually burned, the best you can remember? A. Nine or ten days the best I remember."

And on cross-examination:

"Q. Anything left in the house, Fred? A. Yes, sir, some clothing and a sewing machine.

"Q. Bedstead? A. I don't remember.

"Q. Any chickens left there? A. One that I know of.

"Q. You later got that chicken? A. Yes, sir, after the fire.

"Q. What did you have out at the barn? A. Lots of stuff in the barn.

"Q. What did you have in the barn, Fred? A. A lot of hay, farm tools, did have farm tools in a way, and had double trees and a little corn."

He testified that he or his wife gave Dolph Snider permission to store some oats in one of the rooms. Snider had leased some land from the plaintiff and was sowing oats on the leased part of the farm.

Dolph Snider testified that he had forty acres of land rented for sowing oats, and that on or about the 15th day of February he got permission of Fred Harper to store oats in one room of the residence, and that he had been using some of the oats to sow, but was not through at the time of the fire. The following questions were asked and answered:

"Q. Mr. Snider you don't live on this farm where the house was burned? A. No, sir.

"Q. You live on your own farm? A. Yes, sir.

"Q. The only connection you had with this farm was some oat ground you had rented from Mr. Harper? A. That was my only connection, but I still have land rented on the farm.

"Q. You didn't rent the house? A. No, sir. * * *

"Q. After Fred Harper had moved out, that is he and his family had left the house that burned, you had been in the house after that? A. No, sir. * * *

"Q. Can you tell how long it was after Mr. Harper started to move out until the house burned? A. No, sir, I can't tell you, but it was something like seven to ten days.

"Q. You saw him there from time to time moving? A. Yes, sir, from time to time I saw him come back to get a load.

"Q. From the time he moved until it burned nobody came there, moved into that house and occupied it as a dwelling, after he had gone out, seven or eight days before the fire, did they? A. No, sir, but John, was there and said he was going to move a man in the next morning.

"Q. That was John Anderson Harper who was there? A. Yes, sir."

There can be no question from the testimony, as we read it, but that the court should have sustained the defendant's demurrer as to the liability for the loss of the residence. The evidence shows conclusively that the residence was vacant, and under the terms of the policy such vacancy rendered the policy void. The testimony shows that the plaintiff knew of the vacancy and so stated several times, and did not attempt to get a vacancy permit.

He knew the terms of the policy or should have known and is bound by its plain terms. Cook v. Continental Ins. Co., 70 Mo. 610, 35 Am. Rep. 438; Craig v. Springfield Fire & Marine Ins. Co., 34 Mo. App. 481.

In the case of Young v. Fidelity & Casualty Company of New York, 202 Mo. App. 319, 215 S. W. 496, 498, the court uses this language: "The meaning of `occupancy' as applied to insurance policies has been well stated by Colt, J., in Ashworth v. Insurance Co., 112 Mass. 422, 17 Am. Rep. 117, as follows: `Occupancy as applied to such buildings implies an actual use of the house as a dwelling place, * * * or * * * something more than a use of it for mere storage.' `A dwelling house to be occupied must have in it the presence of human beings as their customary place of abode, not absolutely continuous but as a place of usual return.'" It is our opinion that the judgment cannot stand as to...