Home Ins. Co. of New York v. Scales

Decision Date30 April 1894
CourtMississippi Supreme Court
PartiesHOME INSURANCE CO. OF NEW YORK v. W. H. SCALES ET AL

FROM the circuit court of Oktibbeha county, HON. NEWMAN CAYCE Judge.

Action by appellees against appellant, the Home Insurance Company of New York, on a policy of fire insurance. The building insured, a store-house in West Point, Miss. was occupied when the policy was issued, by a firm of merchants, tenants of insured, under a lease to expire September 1, 1892. On October 14, 1892, before the expiration of the policy, the building was destroyed by fire, and, the company having refused to recognize its liability, or to pay the face of the policy, this action ensued.

Among other stipulations in the policy, was one declaring that it should be void "if the building should be or become vacant or unoccupied, and so remain for ten days." One of the grounds of defense is that, at the time of the fire the building had been vacant and unoccupied for more than ten days, and that the policy is, for that reason, void.

Since the question thus presented is held by this court to be decisive of this appeal, it is unnecessary to report the case on the merits in any other aspect. The facts touching this defense, as found by the court from the record, are stated in the opinion. It may be added that there was testimony to show that Hibbler, the local agent of the company at West Point, had promised appellee, W. W. Scales, who lived at Starkville, Miss. and who acted for the owners of the building, to keep it insured, and for several years had looked after the insurance for them.

The pleadings in the cause are exceedingly voluminous, filling more than one hundred and fifty pages of the record, but all converged, as stated by the court, into three questions of fact, one of which alone, as stated, is held to be decisive.

There was verdict and judgment for plaintiffs, and defendant appeals, assigning as one ground for a reversal the refusal of the court to grant it a peremptory instruction.

Reversed.

Calhoon & Green, for appellant.

Upon the undisputed evidence, it is clear the building was vacant and unoccupied. 2 May on Ins., § 249 (c); 1 Biddle on Ins., §§ 655, 658, 660, 663; Ostrander on Fire Ins., 8§ 140145. Knowledge by the agent of a subsequent vacancy will not prevent a forfeiture. 2 May on Ins., § 249; 1 Biddle on Ins., § 655. Mere silence does not waive. 65 Miss. 312. It is immaterial that the loss is not the result of the vacancy. 1 Biddle, 8 655. Vacancy always increases the hazard. It is certain the tenants would have taken greater care of the building when their own stock of goods was in it than when it was a mere warehouse for old boxes and barrels.

In August, the company, by issuing the vacancy permit, gave assured notice that the building was vacant. Insured acted on the permit, but, on its expiration, took no step to renew it. Hibbler, as agent of the company, was not bound to look after the interest of Scales. In agreeing to do so, he acted as agent for insured. The company did not even know of such agreement.

Muldrow & Nash, for appellees.

The testimony shows that, in fact, there was no vacancy; that the tenants of appellees occupied and had control of the house up to the night of the fire; that they had some property and merchandise in the building at that time, and, on the very day the fire occurred, sold merchandise from the building. Hibbler, supposing the tenants intended to vacate, issued a vacancy permit, and would have issued another, but did not, as he learned that the building was not vacant and was still being used as a store-house. This act of the company, through its agent, determined that there was no vacancy. Hibbler had full authority to issue vacancy permits. Even if there was a vacancy within the meaning of the policy, the conduct and declarations of the company, through its agent, estop it from insisting on this defense. Hibbler knew that appellees relied on him to keep the property insured, and had represented them, upon this understanding, for a number of years. Under the terms of the policy, appellant could have terminated the policy at any time, upon giving proper notice; but, with full knowledge of all the facts, it failed to do so and continued the policy in force and retained the premiums.

To constitute a vacancy, there must be a permanent removal--an entire abandonment. 67 N.Y. 260; 34 Am. R., 106; 7 A. & E., 1037.

Argued orally by M. Green, for appellant, and Wiley N. Nash and H. L. Muldrow, for appellees.

OPINION

CAMPBELL, C. J.

Where the action of the court upon the pleadings determines the controversy between the parties, or some feature of it, and so puts an end to it as to withdraw it from the jury and eliminate it as a factor in the trial of issues of fact, this court should pass upon the action of the lower court on the pleadings; but where the matters involved in the altercations between the parties, however voluminous, and, though the judgment of the court be ever so often required and given,...

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