Hartshorne v. Agricultural Ins. Co.

• Decision Date: 23 May 1888
• Citation: 50 N.J.L. 427,14 A. 615
• Parties: HARTSHORNE v. AGRICULTURAL INS. CO.
• Court: New Jersey Supreme Court

14 A. 615

50 N.J.L. 427

HARTSHORNE

v. AGRICULTURAL INS. CO.

Court of Errors and Appeals of New Jersey.

May 23, 1888.

Error to circuit court, Monmouth county; before Justice SCUDDER.

This action was brought on a policy of insurance dated on July 2, 1883, and issued to Acton C. Hartshorne, as owner, which provides that the loss under it, if any, shall be paid to C. S. Holmes and Tunis V. Schanck, mortgagees, as their interest might appear. In consideration of a premium of $26.53, Mr. Hartshorne was insured for three years from July 2, 1883, in the sum of $3,525, against loss or damage by fire and lightning, to property which was described in the policy as follows: "$1,600 on dwelling-house; $25 on hen-house; $75 on hog-house; $400 on barn No. 1; $300 on barn No. 2; $200 on barn No. 3; $75 on corncrib; $400 on corn barn; $400 on grain therein; $250 on hay, grain, and straw in barn No. 1; $100 on hay and grain and straw in barn No. 3; $100 on corn in crib; total, $3,525." The policy contained a condition in the following words: "If at the time of effecting this insurance, any dwelling-house hereby insured shall be unoccupied, and not so stated on the application, and the written consent of the company indorsed upon this policy; or if, without such written consent indorsed hereon, such dwelling-house shall cease to be occupied as a dwelling,—then, so long as such dwelling-house shall be unoccupied, this policy shall be void, and of no force or effect." On the 1st day of March, 1886, the barns, and nearly all the other out buildings, were consumed by fire, and two weeks later the dwelling-house was likewise burned. The plaintiff established by the proofs that he offered that the insured property constituted the buildings of a farm near Freehold that had been leased by Mr. Hartshorne to Alfred L. Conover for one year from April 1, 1885; that Conover occupied the dwelling-house from the commencement of the term of his tenancy to the 22d day of December in the same year, and then moved to an adjoining farm, about 500 yards from the insured buildings, taking with him all the furniture from the dwelling except a bedstead, some bedding, and a small strip of carpet; that, for a month after Mr. Conover had moved from the dwelling, one of his sons slept in it; that the weather then became so cold that the house was suffered to remain without an occupant until it was burned, six or seven weeks thereafter; and that, at the time of the first fire, the out-buildings were used for the storage of some farm produce, and the housing of some cows, hogs, and poultry which belonged to Mr. Hartshorne. He then insisted that the insurance was divisible into several contracts, and offered to show that, in making the premium to be paid for the insurance, the defendant varied the percentage upon the risks on the different buildings, and took the aggregate of all, for the premium named in the policy. This offer was overruled by the trial court. No consent to the non-occupancy of the dwelling-house was indorsed upon the policy, or otherwise proven. The proofs on the part of the plaintiff were closed, and, upon motion, the court nonsuited him, but allowed exception to its rulings.

Richard V. Lindabury, for plaintiff in error. James Buchanan and A. H. Sawyer, for defendant in error.

MCGILL, Ch., (after stating the facts as above.) The plaintiff now insists—First, that the question of occupancy of the dwelling-house should have been left to the jury; second, that the contract of insurance was so divisible that the validity of the policy, so far as the insurance of the outbuildings was concerned, did not depend upon the occupancy of the dwelling-house; and, third, that the evidence which he offered to show different rates of premium charged for the insurance of...