Limburg v. German Fire Ins. Co. of Peoria

Decision Date26 January 1894
PartiesLIMBURG v. GERMAN FIRE INS. CO. OF PEORIA.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from superior court of Keokuk; H. Bank, Jr., Judge.

Action on a policy of insurance. Jury trial; verdict and judgment for plaintiff. Defendant appeals.James C. Davis, for appellant.

J. F. Smith, for appellee.

KINNE, J.

1. Defendant company issued to plaintiff its policy of insurance for the sum of $500 on a frame store building in the city of Keokuk, Iowa. The policy insured the property against loss by fire from September 4, 1890, to the 4th day of September, 1891. On March 29, 1891, the property was partially destroyed by fire. Plaintiff brings this action to recover, claiming that the loss is total. Defendant pleads a provision in the policy that if the premises “be or become vacant or unoccupied, and remain so for ten days,” the policy shall be void. It alleges that for more than 10 days immediately prior to the fire said premises had become and remained vacant and unoccupied. It also claims that the insured property was only damaged to the amount of $200. Other issues were presented, as to which no question is now made, and they need not be stated.

2. The provision of the policy on which the defense is chiefly based is: “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 remain so for ten days.” It becomes necessary, therefore, to determine when, in legal contemplation, a building may be said to be “vacant or unoccupied,” within the meaning of these words as used in the policy. At the outset it will be well to bear in mind that, in order to avoid liability under this clause of the policy, it is not incumbent on the defendant to show that both conditions existed for the 10 days immediately preceding the fire. It is sufficient, under this provision of the policy, to defeat liability, if the building was either vacant or unoccupied for the required time, in the absence of other provisions indorsed upon or added to the policy. A learned writer has said that the words “vacant and unoccupied” are not synonymous; that “vacant” means empty of everything but air, and that “unoccupied” means that no one has the actual use or possession of the premises; and it is further said that the words must be construed with reference to the kind of structure or building insured. 1 May, Ins. § 249a. It occurs to us that these words must also be construed in view of the uses and purposes for which the building is adapted; that is, as to whether it is so built and arranged as to be used as a dwelling house, or a store building, or a schoolhouse, or a structure fitted and adapted for use for some other purpose. Webster defines “vacant” as being “deprived of its contents; not filled; empty.” The same authority defines “occupy” thus: “To take or hold possession of; or hold or keep for use; to possess.” Another definition is: “To hold possession; to be an occupant.” It is said that occupancy implies an actual use of a dwelling house as a dwelling place; that the insurer has a right, by the terms of such a policy, to the care and supervision which would be involved in such an occupancy. Bonenfant v. Insurance Co., (Mich.) 43 N. W. 683;Shackelton v. Sun Fire Office, 55 Mich. 288, 21 N. W. 343;Ashworth v. Insurance Co., 112 Mass. 422.Weidert v. Insurance Co., (Or.) 24 Pac. 249, was a case of insurance of a dwelling house, where the policy contained a “vacant” or “unoccupied” clause. It appeared that plaintiff moved out of the house about March 20th; that on the next day one McNett moved in, and remained until the 20th of June; and after that time, and up to the time of the fire, plaintiff or his hired man visited the house daily, and that some of the members of his family were at the house every day. It was held that the house was vacant and unoccupied. In Keith v. Insurance Co., 10 Allen, 228, the court held that the fact that tools remained in a shop, and that it was visited daily by the son of the insured, did not constitute occupancy; that the policy contemplated some practical use of the building. In Corrigan v. Insurance Co., 122 Mass. 298, the occupant of the house had moved out, leaving in it some of his furniture, and retaining the key; and the premises were held to be unoccupied. In Herrman v. Insurance Co., 81 N. Y. 184, it was held that a dwelling house was unoccupied when no one lived in it; and in Herrman v. Insurance Co., 85 N. Y. 163, the holding was that occupancy contemplated the use of a house by human beings as their customary place of abode. In Cook v. Insurance Co., 70 Mo. 610, the insured had moved out of the house, leaving some furniture, and leaving a man in possession of the house, and to sleep therein. He abandoned it, and afterwards the house was burned, no one being then there. It was held that it was unoccupied. In Insurance Co. v. Cherry, 84 Va. 72, 3 S. E. 876, the premises insured consisted in part of a dwelling house. The evidence showed that the insured had moved out of the house; that it was not in use, except that a party had put some fodder in the outbuildings; and the buildings were occasionally visited by a resident of the neighborhood, who had the key. The building was held to be vacant and unoccupied. In Halpin v. Insurance Co., (N. Y. App.) 23 N. E. 482, it was held that a building used as a morocco factory, and which was unused for about six months prior to the fire, was unoccupied within the meaning and contemplation of the parties, even though all the machinery remained in the building, and it was closed and locked, and in the hands of the plaintiff's agent for rent, and he visited it frequently. The court said “that to constitute occupancy of a building used for manufacturing purposes there must be some use or employment of the property. Its use as a place of storage merely is not sufficient. * * * The insurer has a right, by the terms of the policy, to the care and supervision which is involved in the use of the property contemplated by the parties at the time of entering into the contract.” In Insurance Co. v. Kyle. (Ind. Sup.) 24 N. E. 727, a tenant moved out of an insured dwelling house March 26th, after which one who had previously engaged the house made some repairs thereon, and kept in the house some planes, and on March 30th put some hay in the stable, and buried some potatoes on the premises, intending to move in on April 1st. March 31st the house was destroyed by fire, and it was held that a policy conditioned against the premises becoming “vacant or unoccupied” was avoided. In Insurance Co. v. Padfield, 78 Ill. 169, it is said: “A fair construction of the language ‘vacant and unoccupied’ is that it should be without an occupant,--without any person living in it.” In Ashworth v. Insurance Co., 112 Mass. 422, it is said: “Occupancy, as applied to such buildings, [dwelling house and barn,] implies an actual use of the house as a dwelling place, and such use of the barn as is ordinarily incident to a barn, belonging to an occupied house, or at least something more than a use of it for storage.” In Insurance Co. v. Wells, 42 Ohio St. 519, the tenant moved out with no intention of returning, leaving in the premises a barrel of corn and a coal-oil can. On the following night the building burned. It was held that it was vacant or unoccupied. In Sleeper v. Insurance Co., 56 N. H. 401, the occupant of the house removed to another town, taking his family, their wearing apparel, and part of their furniture. It was held that the building was vacant and unoccupied, even though he may have intended to return in eight or ten months, and left in the house a few articles not necessary for his present use. In Moore v. Insurance Co., 64 N. H. 140, 6 Atl. 27, it is held that the premises were vacant and unoccupied where the occupant had removed therefrom, though a little furniture was left in the house; and it is also held that the terms “vacancy” and “nonoccupancy” are used interchangeably, and as equivalent in meaning. In Dennison v. Insurance Co., 52 Iowa, 457, 3 N. W. 500, a building used as a boarding house and hotel, which had been vacated by a tenant, and stood awaiting another occupant, was held vacant and unoccupied. In Feshe v. Insurance Co., 74 Iowa, 676, 39 N. W. 87, the tenant moved out of a dwelling house on September 26th, and it was burned October 1st following. The owner lived a mile and a half away, and spent a part of each intervening day in examining and cleaning the house, but did not sleep there nights. Her father, who lived near the insured premises, left an axe and grub hoe in the house at night; otherwise it was not occupied. It was held that to all intents and purposes the house was vacant and unoccupied. It was said: “There was nothing left or placed in the house which indicated an intent to occupy it as a dwelling at any time. It is true it had been rented, and a tenant expected to take possession in about two weeks subsequent to the fire; but this is immaterial.” In Snyder v. Insurance Co., 78 Iowa, 146, 42 N. W. 630, the tenant had moved everything out of the insured dwelling house except some trumpery,--a box or barrel, a cross-cut saw, a pair of skates,--and did not expect to return, and there was no evidence touching its future occupancy. The house was destroyed by fire the next morning. Carpenters had been at work repairing it. It was held vacant or unoccupied. In Sexton v. Insurance Co., 69 Iowa, 99, 28 N. W. 462, the dwelling house had been vacated by the tenant about three months prior to the fire. He had left therein two or three jars, and two large four or five gallon jars, and a molasses keg, and a table. It appears also that plaintiff had in the house some tools and other things. It was held that the articles in the house did not constitute an...

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