Schoeneman v. Hartford Fire Ins. Co. of Hartford, Conn.

• Citation: 267 P. 815,125 Or. 571
• Parties: SCHOENEMAN v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN.
• Decision Date: 29 May 1928
• Court: Supreme Court of Oregon

267 P. 815

125 Or. 571

SCHOENEMAN v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN.

Supreme Court of Oregon

May 29, 1928

Department 2.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Action by M. R. Schoeneman against the Hartford Fire Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an appeal from a judgment rendered for plaintiff in the amount of $750 and interest, and for the further sum of $250 as special attorney's fees. The action was predicated upon a policy of insurance against loss or damage by fire.

The plaintiff, a butcher by trade, was the owner of a dwelling house situate on a 50-acre tract of land in the foothills northwest of Dallas, Polk county, Or., which, at the time the policy of insurance was written, he was engaged in farming. On October 24, 1922, the defendant insurance company, in consideration of the payment of $20 to it by plaintiff issued to plaintiff its insurance policy insuring the above dwelling and furniture therein contained against all direct loss or damage by fire, in an amount not exceeding $1,000 for three years; i. e., until noon, October 24, 1925. $500 of the insurance was placed upon the one-story shingle roof frame dwelling house, and $500 on household furniture wearing apparel, musical instruments, jewelry and pictures.

On November 13, 1924, the property described in the policy was totally destroyed by fire. The plaintiff made his proof of loss, but the defendant refused to pay the damage sustained by plaintiff by reason of such destruction, and, in justification of its refusal, cited plaintiff to the following condition set out in the policy:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if * * * a building herein described * * *becomee vacant or unoccupied and so remain for ten days."

J. C Veazie, of Portland (Veazie & Veazie, of Portland, on the brief), for appellant.

R. H Bassett and Kenneth Randall, both of Salem (William H. Trindle, of Salem, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

It appears that plaintiff's farming operations were not successful. He purchased the land for a small down payment, but, on account of his inability to make further payments, or to make a success of farming, he soon abandoned the place and went to work at his trade in Dallas. In the meantime he disposed of his stock and paid neither interest nor taxes on the land. He took furnished rooms at Dallas, and remained there for something like a year. Thereafter he removed to Independence, where he and his housekeeper rented a dwelling and resided for another year. Plaintiff now contends that the farmhouse neither became vacant nor unoccupied by reason of his dwelling elsewhere, because, as he claims, he made visits to it almost weekly; his theory apparently being that these visits constitute occupancy within the meaning of the insurance policy. Therefore the attention of this court is at once directed to the meaning of the term "vacant or unoccupied," as used in the contract of insurance.

A generally accepted and concise definition of the term "occupancy" is thus stated in Anderson's Dictionary of Law:

"Occupation of a dwelling house, within the meaning of a policy of insurance, requires that there be in the house the presence of human beings as at their customary place of abode, not absolutely and uninterruptedly continuous, but the house must be the place of usual return and habitual stoppage."

In 8 Words and Phrases, First Series, 7258, the editor quotes from the case of Norman v. Missouri Town Mut. Fire Ins. Co., 74 Mo.App. 456, 459, where there appears the following comprehensive treatment of the terms which are the subject of dispute in the case before us:

" 'Vacant' and 'unoccupied' are not synonymous, though sometimes so used. 1 May on Ins. (3d Ed.) § 249a; Ostrander on Fire Ins. (2d Ed.) § 144. Vacancy, correctly speaking, can only occur when the building is empty, contains substantially nothing; while occupancy, when speaking of residences, refers more particularly to human habitation, the pedis possessio or actual living in the dwelling. The last-named author thus illustrates the difference between vacant and unoccupied: 'The distinction,' he says, 'is perhaps more clearly marked in the case of a dwelling house from which the family has removed, leaving a portion of their household goods in the building. It will not be vacant, but occupation is at an end when it is no longer the place of abode of any living person.' In Herrman v. Merchants' Ins. Co., 81 N.Y. 184, 37 Am. Rep. 488, Judge Earl says: 'A dwelling house is unoccupied when no one lives therein, but it is not then necessarily vacant. A house filled with furniture throughout * * * cannot be said to be vacant, the primary and ordinary meaning of which is empty.' So in this case, though the dwelling in question was, at the time the fire occurred, unoccupied--that is, there was no one living in it--yet it was not vacant, that is empty. It is true that all the household goods of the tenant were not then in the building, a portion had been moved, but there was a substantial portion remaining, and the tenant had the actual use of the house to shelter and protect his goods; they were 'under lock and key,' "

Again from 13 Am. & Eng. Ency. of Law (2d Ed.) pp. 274, 275, we quote:

"For a dwelling house to be in a state of occupation, there must be in it the presence of human beings as at their customary place of abode, not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage. It is not sufficient, therefore, that furniture, tools, or other chattels may be left in the building, or that it is occasionally visited and inspected by some one, or is used and controlled, though not inhabited, by a tenant, or is used temporarily as a place of abode."

Mr. Cooley, in his work on the Law of Insurance, discusses this question at length, and from that discussion we take the following, which is couched in language clear and understandable:

"A dwelling is occupied when it is in actual use by human beings who are living in it as

...