Ohio Farmers' Ins. Co. v. Vogel
| Decision Date | 17 November 1905 |
| Docket Number | No. 5,100.,5,100. |
| Citation | 75 N.E. 849 |
| Parties | OHIO FARMERS' INS. CO. v. VOGEL. |
| Court | Indiana Appellate Court |
Appellee has filed a petition in this cause for a rehearing, and has assigned 13 reasons why it should be granted. The first reason is that “the principal opinion *** disregards the law, and contravenes the ruling precedent of the Supreme Court *** as declared in the following cases”-citing several cases. Counsel for appellee have not furnished us with any brief or argument in support of the petition, and after a careful examination of the authorities cited in support of the first reason, we are led to the conclusion that they are not in point, and the proposition is not applicable to any question arising under the petition.
The only controverted question that is attempted to be raised by any of the reasons assigned in the petition is the one arising on the overruling of appellant's demurrer to the second paragraph of the appellee's reply to the fifth paragraph of appellant's answer. The sum and substance of the fifth paragraph of that answer alleges vacancy of the insured property at the time of the fire, and relies upon that part of the contract of insurance to the effect that should the property become vacant during the term of the insurance, the policy for that reason should be void, and not enforceable. The second paragraph of reply admits the fact of vacancy, but seeks to avoid that clause of the contract, on the ground that the premises were occupied by a tenant; that such vacancy was in contemplation of the parties at the time the contract was made; that the appellant would have consented to the vacancy if it had been requested so to do; that at the time of the issuing of said policy, it was the custom of the appellant and other insurance companies in that community to issue assents and permits for insured buildings to be and remain temporarily vacant and unoccupied during changes of tenants and to indorse such permits on such policies upon request therefor by the insured, and that the contract of insurance was entered into with the full knowledge by the parties of such custom, and with reference thereto. The reply also avers that the insured was, and is by law and by such custom, entitled to a reasonable time in which to obtain such permit. It was further averred that the property became vacant by the tenant moving out about 5 o'clock p. m. of the day preceding the night upon which it was destroyed by fire, and that the appellee did not know of such vacancy. It is unnecessary to cite additional authorities to those in the original opinion to the effect that the clause in the policy providing that it shall be void in case the premises should become vacant and unoccupied, for this rule of law is firmly established by all of the authorities. Insurance companies have a right to insert in their policies such a provision, and there is nothing in the law prohibiting the making of such contracts. It is clearly shown by the averments of the answer, to which this second paragraph of reply is addressed, that the parties did enter into such a contract. Under the facts thus pleaded, it becomes a question of law for the court to determine, as to whether or not the premises were vacant or unoccupied at the time of the fire, within the meaning of that clause of the contract.
Appellee accepted the policy in suit with the condition in it, exempting appellant from liability, in case the property insured should become “vacant or unoccupied.” These words “vacant” and “unoccupied” have a definite and fixed meaning and that is, “that if the house insured should cease to be used as a place of human habitation, or for living purposes, it would then become vacant and unoccupied.” The extent of the time of vacancy is not the essence of the contract. Vacancy of insured property is universally recognized in insurance circles as an increased risk, and in contemplation of law there is as much violation of such a provision in a contract by a vacancy for a brief period as there would be for a more extended period. The law cannot measure and determine the question of duration in such cases. Special stress is given to the fact, by appellee, that the insured property was occupied by a tenant and that this fact excused the subsequent vacancy. We are unable to see how such fact can be held to relieve the insured from a compliance with the provisions of the contract into which he entered. If the appellee desired his contract to remain in force, so that the appellant...
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Ohio Farmers' Ins. Co. v. Vogel
...Ohio Farmers' Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court (73 N. E. 612, 75 N. E. 849), under section 1337, Burns' Ann. St. 1901. Affirmed.Guilford A. Deitch and Seba A. Barnes, for appellant. W. T. Branaman and O. H. Montgom......
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