Moore v. Phcenix Ins. Co.

• Decision Date: 30 July 1886
• Parties: MOORE v. PHCENIX INS. Co.
• Court: New Hampshire Supreme Court

6 A. 27

64 N.H. 140

MOORE

v. PHCENIX INS. Co.¹

Supreme Court of New Hampshire.

July 30, 1886.

Reserved case from Grafton county.

Assumpsit on a policy of fire insurance. Trial by a jury. On defendants' exception to the charge. The facts appear in the opinion.

Ossian Ray, for plaintiff.

There may be increase of risk without a forfeiture; as, if the increase is of a temporary character, or from some cause beyond the control of the assured. Wood, Ins. 184, 228, 441; Gamwell v. Insurance Co., 12 Cush. 167; Heneker v. Insurance Co., 14 U. O. C. P. 57; Insurance Co. v. Zaenger, 63 Ill. 464; Joyce v. Maine Ins. Co., 45 Me. 168. In this case the language of the condition is: "If the risk be increased by any means whatever within the control of the assured." The assured lived some 40 miles distant. The tenant had agreed to notify him when he moved away, but he left the premises, August 24, without giving the plaintiff notice. They remained unoccupied thereafter, up to December 11th, without the knowledge and consent of the plaintiff. They were destroyed after the plaintiff had taken possession. This was clearly an increase of risk, if any, without the fault, knowledge, or assent of the assured, and beyond his control, under the decisions. If the question had been submitted, and the jury had found that the non-occupancy increased the risk, still the plaintiff would have been entitled to recover; because, as a matter of law, upon the other facts found in the case, the increased risk did not occur under such circumstances as to avoid the policy. The defendant, therefore, was not prejudiced by the court's refusal to charge as requested. It is well settled that an erroneous charge or ruling which could not have prejudiced the rights of the parties is not ground for setting aside a verdict. Cooper v. Railway Co., 49 N. H. 209.

Where the owner of a dwelling, who, after a tenant has vacated the premises, moves his furniture into and cleans up the house, with an intention of occupying it, but during that time does not actually occupy the house at night, and subsequently leaves it temporarily on business, putting a party in possession until his return, the house cannot be considered as vacant or unoccupied within the meaning of a clause in the policy providing that, if the insured buildings shall "be or become vacant or unoccupied," the policy shall be void, etc. In contemplation of law the owner's occupation of the house under such circumstances is held to have been continuous. Stupetski v. Insurance Co., 43 Mich. 373; S. C. 5 N. W. Rep. 401; Cummins v. Insurance Co., 67 N". Y. 260; Herrman v. Insurance Co., 81 N. Y. 184; Phoenix Ins. Co. v.Tucker, 92 Ill. 64; Dennison v. Insurance Co., 52 Iowa, 457; S. C. 3 N. W. Rep. 500.

Bingham, Aldrich & Remick, for defendant.

The court should have ruled "that the non-occupation of the premises from August 24th to December 11th increased the risk and avoided the policy." Sleeper v. Insurance Co., 56 N. H. 401; Chamberlain v. Insurance Co., 55 N H. 249; Hill v. Insurance Co., 58 N. H. 82; Baldwin v. Insurance Co., 60 N. H. 164. The policy provides that, it the risk be increased by any means whatever within the control of the assured, the policy shall be void. That the risk was increased by the non-occupancy is too clear for argument; and we submit the court should hold the policy void as a matter of law. If leaving premises, as these were, and for the time they were left, does not avoid an insurance policy containing conditions like the one in suit, we are at a loss to know what the assured can do to avoid a policy. Sleeper v. Insurance Co., supra; Hill v. Insurance Co., supra.

It is perfectly evident from a fair interpretation of the language of the policy that no such use of the property as was made was contemplated by either of the parties, and that no such risk was assumed by the company, or paid for by the assured. Such a risk is expressly guarded against by the conditions of the policy. At the time the policy was written the buildings were occupied, and the plaintiff should have kept them occupied, or procured the assent of the company to their non-occupancy, because, by the contract, he was to do nothing which should increase the risk without their assent. The only excuse the plaintiff advances is that he did not know of the non-occupancy until December 10th or 11th. This is no excuse. In Sleeper v. Insurance Co., supra, the court says: "It does not alter the case that he did not know that his building had become vacant. It was his business to know it."

The court should have directed a verdict for the defendant, because, as a matter of law, the premises were vacant and unoccupied within the meaning of the policy. In Sleeper v. Insurance Co. the question was left to the court by the referee to say whether the premises were, as a matter of law, vacant, and the court say, "They were vacant." We are unable to see how the court can distinguish that case from the one at bar. "What is meant by the term 'vacant and unoccupied,' as working a forfeiture of a fire policy, is a question of law." Phoenix Ins. Co. v. Tucker, 92 Ill. 64. This being so, is this court prepared to give a legal definition to these terms that will allow a person to strip premises of everything of value, and leave them uncared for, for months? Is it reasonable to suppose that the company contemplated any such risk when they insured the plaintiff? Herrman v. Insurance Co., 81 N. Y. 184; Alston v. Insurance Co., 80 N. C. 326; Insurance Co. v. Zaenger, 63 Ill. 464; Insurance Co. v. Padfield, 78 Ill. 167. The same reasoning will apply to the term "vacant" as is applied to the term "unoccupied," where it is held that there must be an actual and substantial occupancy. Sonneborn v. Insurance Co., 44 N. J. Law, 220; Cook v. Insurance Co., 70 Mo. 610; Dennison v. Insurance Co., 52 Iowa, 457; S. C. 3 N. W. Rep. 500; Insurance Co. v. Meyers, 63 Ind. 238; McClure v. Insurance Co., 90 Pa. St. 277; Ridge v. Insurance Co., 9 Lea, 507. The judge's charge on the question of vacancy is erroneous. He told the jury that in this connection "vacant" means the same as "empty, devoid of furniture." That this is not law is proven by all the cases before cited. Ashworth v. Insurance Co., 112 Mass. 422; Boalwright v. Insurance Co., 1 Strob. 281; Dittmer v. Insurance Co., 23 La. Ann. 458; Wood, Ins. § 239.

ALLEN, J. The defendants claim that the action cannot be maintained, because it was not commenced in this court within 12 months from the date of loss, as stipulated in the policy. The action was commenced within 12 months of the loss in the circuit court of the United States. Subsequently, after the lapse of more than 12 months, by agreement of the parties, the writ was transferred to this court. The entry of the action here was not of a new action then first commenced. It was the same action begun in the federal court. The agreement to enter the action here, and prosecute the defense, was a waiver by the defendants of the limitation in the policy. The limitation was not pleaded, and this defense could not be made except under a special plea.

The buildings were occupied at the time the insurance was effected, August 15, 1876. From August 24, 1876, to December 11 of the same year they were not occupied. They were consumed by fire, December 20, 1876. The policy contained the condition that "if the premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period of more than 10 days, or the risk be increased by any means whatever within the control of the assured, without the consent of the company, * * * then, and in every such case, this policy shall be void." It seems to have been conceded at the trial that the plaintiffs' buildings had been "unoccupied," within the meaning of that term as used in the policy for a period of more than 10 days. But a different meaning was given to the phrase "vacant and unoccupied;" and under instructions of the court upon the definition of the word "vacant," the jury found that the buildings were not "vacant and unoccupied" for a period of more than 10 days between the date of the policy and the fire.

The meaning of the words "vacant and unoccupied," as used in the contract of insurance, is that which the parties intended to give them; and that intention is to be found from the whole instrument, the subject-matter of the contract, and the situation of the property insured. The object of the stipulation against vacancy and non-occupancy was to guard against the increased risk which arises from the absence of everybody whose duty or interest might afford some protection. In the same clause of the contract, "increase of risk" from the mode of occupation and use of the premises, and "increase of risk by any means whatever," are mentioned as express grounds for avoiding the policy. "If the buildings shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period of more than ten days, or the risk be increased by any means whatever," is a statement in which the leading idea in the condition of forfeiture is "increase of risk," and that idea must have been intended as a part of the definition of the words "vacant and unoccupied." It was the increase of risk from the loss of care and attention of persons otherwise present, which the parties intended to guard against by the stipulation of forfeiture in case of vacancy and non-occupancy for more than 10 days. They intended, by the words "vacant and unoccupied," as used in the policy, and in the connection in which they were used, such a desertion of the premises and removal from them as would materially increase the risk.

The case of Sleeper v. Insurance Co., 56 N. H. 401, sustains this construction of the words "vacant and unoccupied." In that case the stipulation for forfeiture in the policy was:

"If the premises hereby insured become vacated by the removal of the owner...