Richards v. Continental Ins. Co. of the City of New York

• Decision Date: 05 December 1890
• Citation: 47 N.W. 350,83 Mich. 508
• Court: Michigan Supreme Court
• Parties: RICHARDS v. CONTINENTAL INS. CO. OF THE CITY OF NEW YORK.

47 N.W. 350

83 Mich. 508

RICHARDS v. CONTINENTAL INS. CO. OF THE CITY OF NEW YORK.

Supreme Court of Michigan

December 5, 1890

Error to circuit court, Jackson county; ERASTUS PECK, Judge.

Daniel A. Ferguson and Thomas A. Wilson, for appellant.

Barkworth & Cobb, for appellee.

GRANT, J.

This is a suit upon a policy of insurance to recover for a loss, by fire, of a dwelling-house covered by the policy. The principal question in the case is whether the building was "vacant or unoccupied" so as to avoid the policy. The house had been occupied by a tenant of the plaintiff. The plaintiff had notified his tenant to vacate the house, which the tenant agreed to do, and did. The tenant rented another house, and moved into it with his family two days before the fire occurred. Plaintiff lived about a mile from the house and was informed that his tenant had left. The tenant left some goods in the house, but they were not such as he needed at the time for the purpose of housekeeping. He spoke to the plaintiff about leaving them there temporarily. The policy provided that it should be null and void if at any time the house should be or become vacant or unoccupied. I think the house was "vacant," within the rule of Bonefant v. Insurance Co., 76 Mich. 653, 43 N.W. 682. It was there said: "Occupancy implies an actual use of the house as a dwelling-place." This dwelling-house had been abandoned, so far as any occupancy was concerned. The tenant had left, with no intention to return, and no other person was moving in to take his place. The contract of insurance was violated, and thereby rendered null and void. The occupancy provided for in the contract of insurance had ceased. This was not a question of fact for the jury. The facts were undisputed. The question was therefore one of law for the determination of the court.

It is insisted by the plaintiff that the defendant waived its right to make this a defense. The policy provided that no other than the superintendent of the western department of the defendant at Chicago should have power or authority to waive or alter any of the terms or conditions of the policy, and that all the agreements by the superintendent must be signed by him. No waiver, written or verbal, by this superintendent is claimed. Upon being informed of the loss the adjuster and general agent for Michigan, by appointment, met the plaintiff, who told them about the removal of the tenant from his...