Imperial Fire Ins. Co. v. Kiernan

• Decision Date: 17 December 1885
• Citation: 7 Ky.L.Rptr. 542,83 Ky. 468
• Parties: Imperial Fire Ins. Co. v. Kiernan. Northern Ins. Co. v. Kiernan.
• Court: Kentucky Court of Appeals

83 Ky. 468

7 Ky.L.Rptr. 542

Imperial Fire Ins. Co. v. Kiernan.

Northern Ins. Co. v. Kiernan.

Court of Appeals of Kentucky.

December 17, 1885

APPEALS FROM JEFFERSON COURT OF COMMON PLEAS.

F. T FOX, JR., FOR APPELLANTS.

1. A special verdict must find all the essential facts. The verdict in this case did not authorize a judgment for the plaintiff, because it did not find any sum for which judgment should be given if the law should be found for him. (Wait's N. Y. Annotated Code, section 260, page 464; Manning v. Monaghan, 23 N.Y. 539-41; Eiseman v Swan, 6 Bosworth, 669; L., C. & L. R. R. Co. v Case, 9 Bush, 734; Walker's American Law, pages 645-6 and note a; Carruthers' History of a Law Suit, page 232; Minor's Institutes, vol. 4, part 1, pages 750-53; Hann v. Field, Littell's Select Cases, 377; McClean v. Cooper, 3 Call, 367; Bacon's Abr., Title, Verdict E.; Fryer v. Roe, 12 Com. Bench, 437, and note, 444; Barnes v. Williams, 11 Wheat., 415; 4 How., 143; 20 How., 441; 8 Howard, 484; 23 Wall., 162; 91 U.S. 131; Witty v. C. O. & S.W. R. R. Co., 6 Ky. Law Rep.)

2. The trial was not ended until the " decision" or judgment was rendered, and, therefore, the motion for a new trial was made in time. (Fonekes' Actions at Law, page 148; Smith's Actions at Law, page 134.) Allen v Hill, 16 Cal. 117, is not authority in this State. as it does not appear what are the provisions of the California Code upon this subject.

3. The conditions of the policy sued on required the insured house to be occupied as a family residence during the entire contract, and if at any time during the year it became vacant or unoccupied as a family residence, without notice to defendant, the policy became void. (Dennison v. Phœ nix Ins. Co., 52 Iowa 457; Keith v. Quincy M. Fire Ins. Co., 10 Allen, 228; Am. Ins. Co. v. Padfield, 78 Ill. 167; Ashford v. B. M. Fire Ins. Co., 112 Mass. 422; Poor v. Humboldt Ins. Co., 125 Mass. 274; Corrigan v. Conn. Fire Ins. Co., 122 Mass. 298; Harrison v. City Fire Ins. Co., 21 Allen (Mass.), 231; Cook v. The Continental Ins. Co., 70 Mo. 610; Herrmann v. Adriatic Fire Ins. Co., 85 N.Y. 163; Paine v. Agricultural Ins. Co., 5 N. Y., S. C., 619; Abrahams v. Agr. Ins. Co., 40 Up. Can., Q. B., 175; Sleeper v. N. H. Fire Ins. Co., 58 N. H., 401; The Am. Ins. Co. v. Foster, 92 Ill. 335; Æ tna Ins. Co. v. Meyers, 63 Ind. 238; Wustum v. City Fire Ins. Co., 15 Wis. 138; Cummins v. Agr. Ins. Co., 67 N.Y. 262; Hill v. Eq. M. F. Ins. Co., 58 N. H., 82; McLure v. Watertown Fire Ins. Co., 90 Pa. State; Wood on Insurance, page 184; Kelly v. Worcester M. Fire Ins. Co., 97 Mass. 286; North American Fire Ins. Co. v. Zaenger, 63 Ill. 464; Jackson, & c., v. Æ tna Ins. Co., 16 B. M., 258-9; 13 Bush, 317; Germania Ins. Co. v. Rudwig, 79 Ky.; Bennett v. Agr. Ins. Co., Ins. Law Journal, Aug., 1883.)

HARGIS AND EASTIN ON SAME SIDE.

1. There being no general or special verdict as to the amount plaintiff was entitled to recover, there was no verdict for damages on which to base a judgment.

2. The award of the arbitrators was not declared on, and, therefore, furnished no excuse for the court assuming the functions of the jury and fixing the damages.

3. The finding as to occupancy is against the evidence.

Brief of associate counsel referred to for authorities.

WM. LINDSAY FOR APPELLEE.

1. Policies of insurance are to be construed against the company when questions of doubt arise. (Evans v. Sanders, 8 Porter, Ala., 498; Insurance Co. v. Bland, 9 Dana, 151; Æ tna Ins. Co. v. Jackson, 16 B. M., 259; Wood on Fire Insurance, page 146; Reynolds v. Ins. Co., 47 N.Y. 597.)

2. The words in the policy describing the house insured as a " family residence" are mere words of description, and are to be treated as a representation, and not as a warranty. (Act of Feb. 4, 1874, Bullitt & Feland's Gen. Stat., page 859; Germania Ins. Co. v. Rudwig, 3 Ky. Law Rep., 721.)

3. These words of description do not imply an agreement that the property insured shall continue in the same condition, or literally in the same kind of occupation during the term of the insurance, or that the house will continue to be occupied. (Wood on Fire Insurance, section 90, page 184; Cum. Valley Ins. Co. v. Douglass, 58 Pa. St., 419; Bryan v. Peabody Ins. Co., 8 W.Va. 605.)

4. A single inhabitant eating and sleeping in the house, charged with the duty of taking care of it, constitutes an " occupation" within the meaning of that word as used in insurance policies. (Stupetski v. Transatlantic Ins. Co., 38 Am. Rep., 195; Herrmann v. Merchants' Ins. Co., 81 N.Y. 184; 85 N.Y. 169; Am. Ins. Co. v. Padfield, 78 Ill. 169; Harrigan v. Fitchburg Ins. Co., 124 Mass. 128.)

S. F. J. TRABUE, JR., ON SAME SIDE.

1. The time within which a motion for a new trial must be made is to be counted from the return of the verdict, and not from the rendition of judgment thereon. (People ex rel Allen v. Hill et al., 16 Cal. 113; Peabody v. Phelps, 9 Cal. 213.)

2. The words " occupied as a family residence" were not intended as a warranty. (81 N.Y. 184.)

3. These words are to be treated as a representation, and not as a warranty, regardless of the intention. (Bullitt & Feland's Stat., page 968; Germania Ins. Co. v. Rudwig, 3 Ky. Law Rep., 721.)

4. An occupancy by one person was all that was necessary to satisfy the conditions of the policy. (Shearman v. Niagara Fire Insurance Co., 46 N.Y. 532-3.)

5. The special verdict was, in substance and in form, in strict conformity to the Code. (Civil Code of Practice, sections 326 and 327.)

OPINION

HOLT JUDGE:

The policy of insurance issued by the appellants to the appellee, John Kiernan, was for one year from January 15, 1881, and described the property as " his two-story brick, single roof building, occupied as a family residence. "

A subsequent clause provided for its becoming void in these words: " or shall be or become vacant or unoccupied without notice to and consent of these companies in writing."

When insured it was occupied as a family residence by a tenant of the appellee, and the character of the house was never changed; but on November 26, 1881, he, together with his family, moved out of it, although his lease would not have expired until in March following; and on December 5, 1881, it was burnt.

When the tenant removed, the appellee, failing to obtain another tenant immediately, got a man to stay in one room of the house, which was furnished for the purpose, and who ate and slept there, having access to the entire building, for the purpose of caring for and watching it; and he was so doing, when it was destroyed.

The policy provided, that if the parties to it differed as to the amount of any loss, it should be fixed by arbitrators, whose written award should be binding upon the parties as to the amount, but should not determine the liability of the appellants therefor.

After proper proof had been made of the loss, the parties, by written contract, submitted the question of amount to arbitrators, who, by an award in writing, fixed it at five thousand six hundred and two dollars and thirty-two cents. The appellants failing to pay the insurance, which was two thousand dollars by each company, the appellant brought these actions upon the policy (a joint one by the two companies), alleging that his loss was ten thousand dollars, and asking judgment in each action for the two thousand dollars. Subsequently, he, by an amended petition, set up the agreement to arbitrate, and the award.

The appellants seem at the outset to have mainly relied upon alleged actual fraud upon the appellee's part; but the testimony disclosing his good faith, the defense mainly urged by them at last in the lower court was, that the policy became inoperative when the house ceased to be occupied by a family, and that the words, " occupied as a family residence," constituted a continuing warranty that the house should be occupied by a family during the entire time covered by the policy.

If this be so, however, then the subsequent provision that the policy should become void if the house should " be or become vacant or unoccupied, " was needless. These words mean, without an occupant; and if the words used in giving the description of the property, " occupied as a family residence," imply an undertaking that the house should be occupied by a family during the term of insurance, then we must suppose that the insurers used the subsequent words unnecessarily.

Effect should be given to both, if they can be reconciled, and both be considered in construing the contract; but forfeitures are not favored, and if the language be of doubtful import, it should be construed most strongly against the insurer.

If, under our law, the words " occupied as a family residence" could be treated as a warranty, we think, in view of the subsequent language, it could only be held to be one as to the use of the house in presenti; but our statute provides, that " all statements or descriptions in any application for or policy of insurance shall be deemed and held representations, and not warranties, nor shall any misrepresentation, unless material or fraudulent, prevent a recovery on the policy." (Gen. Stat., page 918.)

The parties must be considered as having contracted with reference to this statute, which was upheld in the case of the Germania Insurance Company v. Rudwig, & c., 80 Ky. 223, and the statement in the policy, " occupied as a family residence," must be regarded as but a representation as to its then use, and the subsequent words as but an undertaking by the insured that the house should not be without an occupant during the time covered by the policy.

The motion of the appellants for a peremptory instruction in their behalf, in the nature of a nonsuit, was based upon a...