Roe v. Dwelling House Ins. Co. of Boston

• Decision Date: 02 May 1892
• Docket Number: 310
• Citation: 149 Pa. 94,23 A. 718
• Parties: Roe v. Dwelling House Insurance Company, Appellant
• Court: Pennsylvania Supreme Court

23 A. 718

149 Pa. 94

Roe v. Dwelling House Insurance Company, Appellant

No. 310

Supreme Court of Pennsylvania

May 2, 1892

Argued March 18, 1892

Appeal, No. 310, Jan. T., 1892, by defendant, The Dwelling House Insurance Company of Boston, Mass., from judgment of C.P. Susquehanna Co., August T., 1890, No. 447, on verdict for plaintiff, P.D. Roe.

Assumpsit on policy of fire insurance to recover for total loss of dwelling house.

At the trial, before SEARLE, P.J., plaintiff offered in evidence the insurance policy which contained the following clauses "The said company hereby agree to make good unto the said insured, his executors, administrators, and assigns, all such immediate loss or damage, not exceeding in amount the sum insured, nor the interest of the insured in the property nor the actual cash value of any building or other property at the time of loss or damage as shall happen by fire or lightning, to the property above specified from" etc.

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . . if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant, or unoccupied, or not in use."

The policy also provides that in case of loss, the insured should give immediate notice in writing to the company; and within 30 days after the loss, render the company a sworn statement thereof. It further stipulated that "no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto."

The letter referred to in the opinion of the Supreme Court was signed "Dwelling House Insurance Company, per Nutter." Witness Laythrop, testified that he notified the general agent of defendant at Scranton of the loss and received the letter in question, in reply to his letter. It was then offered in evidence under objection.

Plaintiff having testified that Mr. Melchert came to see him 10 days after the fire, was asked:

"Q. What did he say as to the liability for the payment of that loss?" [6] Also

"Q. Now state whether or not he made you any offer of compromise?" [7]

The answers to both questions were admitted, under objection.

Other facts appear by the opinion of the Supreme Court.

Points of defendant, refused, were:

"2. That one of the conditions of this policy being that the insured shall, within thirty days after the loss or damage by fire or lightning, render a statement to the company signed and sworn to by the insured, stating the knowledge of the insured as to the time and origin of the loss by fire, the interest of the insured and of all others in the property, etc.; the amount of the loss thereon, all incumbrances thereon, etc., and that loss shall not be payable till the conditions of the policy are complied with, and no proofs of loss having been furnished as required, the plaintiff cannot recover, and the verdict must be for the defendant. [1]

"3. The plain and unequivocal provisions of this policy being that no officer, agent or other representative of this company shall have the power to waive any provisions or conditions of this policy unless said waiver be in writing or attached thereto, nor shall said waiver be claimed by the insured unless so written or attached, and there being in this case no evidence of the waiver of the conditions of this policy requiring proofs of loss to be furnished within thirty days, and no proofs of loss having been furnished as required, the plaintiff cannot recover, and the verdict must be for the defendant. [2]

"4. The house having been vacated by the insured and his tenant before the fire, and was vacant at the time of the fire, and as the policy by its provisions is to be void in case of vacancy or change of possession, the plaintiff cannot recover, and the verdict must be for the defendant. [3]

"5. Upon the whole evidence produced in this case the plaintiff is not entitled to recover." [4]

The court charged, in part, as follows:

"As to the question of the occupancy of this dwelling house, the defendant claims that the vacancy, which it is admitted existed for a few days at the time of the fire, was sufficient to wholly avoid this policy, and that there can be no recovery upon it. [The question to be considered is whether under the conceded facts in the case the policy is void. There can be no doubt as to what is meant by the occupancy of a building of this character.

"The occupancy contemplated by the policy was such as would be proper according to the character of the property insured. If the property insured is a dwelling, then the occupancy referred to is its occupancy as a dwelling in the ordinary way in which dwellings are occupied. If it is a barn, the occupancy is not a dwelling therein, but such occupancy as is usually with such property. The building in question being a dwelling house, the occupancy contemplated by the policy would be its occupancy as a dwelling house in the ordinary way in which such property is occupied. It was, therefore, under this policy, necessary, when the premises became vacant or unoccupied, to notify the defendant company and have its consent endorsed upon the policy.

"You are not to understand by the occupancy of premises that there must be some one in the house or on the premises during the whole period of the time of its occupancy, but that it is such occupancy as is usually had of such premises. A house may be occupied all the time, some one being bodily present in the house, or about the premises all the time, or no one may be in the immediate occupancy of the house, in the sense that he is there bodily present, and yet the house may be considered in law as occupied. The family might lock up the house and go away on a visit, and yet the house would not be in law unoccupied within the meaning of that clause in the policy; or they might go upon a visit to the seashore or to their neighbors, and remain away a reasonable length of time, and yet the house not be considered as unoccupied during the time its occupants were thus away. While a house, under such circumstances, is in law considered to be occupied, it must not, however, be left unoccupied for any considerable length of time.

"The law does not fix definitely any length of time during which the occupant of the house can remain away, so that each case has to stand upon its own merits, as to whether the length of time the occupant was absent from the premises was unreasonable under all the circumstances.]

["In case of an out-going and an in-coming tenant, where a few days intervene between the actual physical occupancy of a dwelling house, between the out-going tenant leaving and the in-coming tenant taking possession, the question is a question for the jury to determine whether there was an unreasonable time. One tenant does not always leave the property and the other move in the same day. And under all the evidence this is a question of fact for you to determine whether the occupancy was reasonable or not. And therefore upon this branch of the case we submit the question of the reasonableness of this vacancy to you. If you find that the house was in the possession of Depew as tenant of Roe, under the lease which expired upon the 1st day of April, 1890, and that he had leased the same to one Sivers, for the succeeding year, commencing on the said 1st day of April, 1890, and that said Depew removed his family and part of his things on the 24th day of March, 1890, and the remainder on the 27th day of March, 1890, and that the fire occurred on the 28th day of March, 1890, then if you find that the time during which the house was unoccupied was a reasonable one under the circumstances, then this provision of the policy in relation to the necessity of notice of a vacancy does not prevent a recovery in this case. In other words, if you find that this was not an unreasonable vacancy in the transfer of the tenancy of the house from the out-going to the incoming tenant, then as far as that provision of the policy is concerned you may consider it of no effect.]

"As to the second question in this case raised by the defendant that under the stipulations of the policy it was the duty of the plaintiff to have tendered to the company, within thirty days of the time of loss, proofs of loss as required by the stipulations read to you, the plaintiff claims that the defendant has waived the necessity of requiring this proof of loss, first, by reason of the fact that the loss was a total one, and the defendant was notified that the loss was total; and second, that by reason of its being a total loss, and the plaintiff having notified the company of that fact, and the company sending a man upon the ground to settle, and having come upon the ground and held an interview with the plaintiff in the case, and viewed the premises and seen for himself that it was a total loss, and that he then claimed that the company was not liable for any portion of the loss by reason of the house being vacant at the time of the fire, and also offering to compromise; that by ...