Kupfersmith v. Del. Ins. Co.

• Decision Date: 03 March 1913
• Citation: 86 A. 399,84 N.J.L. 271
• Parties: KUPFERSMITH v. DELAWARE INS. CO.
• Court: New Jersey Supreme Court

86 A. 399

84 N.J.L. 271

KUPFERSMITH

v. DELAWARE INS. CO.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

Error to Supreme Court.

Action by Hyman Kupfersmith against the Delaware Insurance Company. From a judgment for plaintiff, defendant brings error. Reversed.

See, also, 81 N. J. Law, 664, 80 Atl. 561.

Richard Boardman, of Jersey City, for plaintiff in error.

Clarence Kelsey, of Jersey City, for defendant in error.

GUMMERE, C. J. This suit was brought upon a policy of insurance for $1,000, issued by the defendant company to the plaintiff, upon a frame building owned by him, and which, the declaration alleged, was destroyed by fire on the 16th day of February, 1909. The trial resulted in the direction of a verdict in favor of the plaintiff for the full amount of the insurance, with interest thereon from the date upon which the defendant was required to pay losses under the terms of the policy. The propriety of this judicial action is now before us for review.

The undisputed facts proved in the case were as follows: On the 15th day of October, 1908, a fire occurred in the building, which partially destroyed it, and thereafter it remained unoccupied. For the damage done by that fire the plaintiff brought suit against the defendant company, and that suit resulted in a judgment against him. On the 16th day of February, 1909, a second fire occurred in the building and completed its destruction. The present suit was brought for the recovery of the loss sustained by the plaintiff from this second fire. The value of the building before the occurrence of the first fire was shown to be about $8,800. How much of this value was wiped out by that fire the evidence failed to indicate; the only proof upon that point being the testimony of the plaintiff himself that the building "was destroyed by the fire and was not able to be occupied." The obligation of the defendant company, under its policy, in the present suit could not extend beyond the pecuniary loss sustained by the plaintiff from the second fire. Whether that loss exceeded the amount of the insurance, or was less than it, manifestly, depended upon the value of the partially destroyed building after the first fire. There being a total absence of proof upon this point, except the testimony of the plaintiff that the building was "destroyed" by that fire (which suggests the idea that it was so injured as to make its repair practically impossible and to destroy its value), a verdict for nominal damages was all that the plaintiff was entitled to, conceding that liability on the part of the' defendant had been shown—a matter that was in dispute between the parties. The direction of a verdict for the full amount of the insurance was therefore plainly erroneous.

But the judgment under review is legally objectionable for a more fundamental reason. One of the provisions of the policy is that it "shall be void if the * * * building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remains for ten days." The proofs disclosed, as has already been stated, that the building was unoccupied during the whole period between the two fires; and this fact was specially pleaded by the defendant in bar of the action. The plaintiff insists that the clause in the policy appealed to by the defendant was suspended, and did not apply in case the vacancy necessarily resulted from the partial destruction of the building by fire; that, by force of another clause of the policy, viz., that it shall be optional with the company to repair, rebuild, or replace the property lost or damaged by fire within a reasonable time after receiving proof of such loss, on giving notice of its intention to do so, the insured is required to permit the property to remain in the condition in which the fire left it until after the insurer has exercised its option, and so, "by the very terms of the policy," must allow it to remain unoccupied during that period if the fire has rendered it uninhabitable. The only authority cited by counsel in support of this contention, and the only one which we have found bearing upon it, is the case of Lancashire Insurance Co. v. Bush, 60 Neb. 116, 82 N. W. 313....