Jelin v. Home Ins. Co., 5168.
| Decision Date | 06 July 1934 |
| Docket Number | No. 5168.,5168. |
| Parties | JELIN v. HOME INS. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Paul W. Ewing, of New Brunswick, N. J., and Andrew Van Blarcom, of Newark, N. J., for appellant.
Arthur T. Vanderbilt, of Newark, N. J., for appellee.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a judgment of the District Court for the District of New Jersey. On December 23, 1930, the appellant became the owner of a fifteen-room property located in Middlesex county, N. J. On January 13, 1931, the prior owner, with the consent of the appellee, assigned a fire insurance policy, written by the appellee and then in force, to the appellant. At the time of the sale there was no tenant on the premises nor had there been one in possession for a few weeks. The appellant held the property for sale rather than rental, so that from December, 1930, to June, 1931, neither he nor a tenant was in possession. Except for some matting, an old brass bed, an old straw mattress, and a chair with a broken back which were in a room on the third floor, the house was empty. The property was destroyed by fire on June 23, 1931, and the appellant thereupon brought suit in the court below upon the policy. At the first trial, the sole question submitted to the jury was one of damages and the jury returned a verdict for the appellant in the sum of $13,000. The court ordered a new trial, at the conclusion of which it directed a verdict for the appellee and entered judgment thereon. This appeal is from that judgment.
Numerous defenses were relied upon by the appellee upon the first trial, but upon the second the only issue raised was whether the appellee was relieved of liability because the premises were vacant for a period longer than the policy permitted. The policy contains the following standard provision: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days."
This provision, however, was modified by an endorsement or rider in favor of the assured which reads: "Permission is hereby granted: For mechanics to be employed for additions, alterations, and repairs without limit of time, and this insurance to extend thereto; to keep and use not exceeding one quart of benzine, naphtha or other volatile substance for domestic purposes in each housekeeping apartment; to use gas, electricity and/or kerosene oil for lighting heating and/or cooking purposes; to use steam, hot water, coal stoves, hot air furnaces and/or grates for heating; to remain vacant during any changes of tenants, or while awaiting a tenant, not exceeding sixty consecutive days at any one time and unoccupied for not exceeding eight consecutive months in any one year and for other insurance without notice until...
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