Moore v. Phcenix Ins. Co.

• Court: Supreme Court of New Hampshire
• Writing for the Court: ALLEN, J.
• Citation: 6 A. 27,64 N.H. 140
• Parties: MOORE v. PHCENIX INS. Co.
• Decision Date: 30 July 1886

6 A. 27
64 N.H. 140

MOORE
v.
PHCENIX INS. Co.¹

Supreme Court of New Hampshire.

July 30, 1886.

6 A. 28

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.

6 A. 29

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

6 A. 30

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...