Litch v. North British and Mercantile Insurance Company

• Decision Date: 28 February 1884
• Citation: Litch v. North British and Mercantile Insurance Company, 136 Mass. 491 (Mass. 1884)
• Court: Supreme Judicial Court of Massachusetts
• Parties: James P. Litch & others v. North British and Mercantile Insurance Company

136 Mass. 491

James P. Litch & others v. North British and Mercantile Insurance Company

Supreme Court of Massachusetts

February 28, 1884

Suffolk. Contract upon a policy of insurance against loss by fire issued to the plaintiffs by the defendant corporation. Trial in the Superior Court, before Staples, J., who ruled that the plaintiffs could not maintain their action, and directed a verdict for the defendant; and the plaintiffs alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

J. G Holt & H. H. Mather, for the plaintiffs.

L. S Dabney, for the defendant.

Morton C. J. Devens & Holmes, JJ., absent.

OPINION

Morton C. J.

By the policy in suit, the defendant insured the plaintiffs "on their one and one half story frame dwellinghouse," situate in Hyde Park. The policy contained the condition that it should become void "if the above-mentioned premises shall at any time be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain, without notice to and consent of this company in writing." The house was burned on April 3, 1881. It appeared by the undisputed evidence at the trial, that it was vacant and unoccupied from January 1, 1881, until it was destroyed by fire, without notice to or consent of the company.

The plaintiffs contend that the testimony of one Davis shows an occupancy by him at the time of the fire. He testified that he hired the house and...