Schuermann v. Dwelling-House Ins. Co.

• Decision Date: 12 May 1896
• Citation: 161 Ill. 437,43 N.E. 1093
• Parties: SCHUERMANN v. DWELLING-HOUSE INS. CO.
• Court: Illinois Supreme Court

161 Ill. 437

43 N.E. 1093

SCHUERMANN

v.DWELLING-HOUSE INS. CO.

Supreme Court of Illinois.

May 12, 1896.

Error to appellate court, First district.

Assumpsit by Mrs. Conrad Schuermann, against the Dwelling-House Insurance Company, on a policy of fire insurance. From a judgment of the appellate court (57 Ill. App. 200) affirming a judgment in favor of defendant, plaintiff brings error. Affirmed.J. M. Hamilton, for plaintiff in error.

Harbert & Daley, for defendant in error.

The plaintiff in error, who was the plaintiff on the trial in the superior court, brought an action upon an insurance policy, to recover, for loss by fire, the value of the insured building. The policy contained the following condition, which is relied upon for forfeiture and avoidance of the policy. ‘This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if any change take place in the interest, title or possession of the subject of insurance (except change of occupants, without vacancy or unoccupancy, or other increase of hazard), whether by legal process or judgment, or by voluntary act of the insured or otherwise, * * * or if the building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, or not in use.’ Whether the building insured was vacant and unoccupied, within the meaning of this condition, was the only question made by the defendant on trial. The trial court instructed the jury to find a verdict for defendant, when the evidence was in, and a verdict and judgment was entered accordingly. Due motions were made and exceptions taken, and on appeal to the appellate court of the First district the judgment was affirmed. The plaintiff sued out this writ of error. The contention of the plaintiff here is that the building was not vacant and unoccupied, within the meaning of the terms of the condition, and, further, even if it be admitted that the building was vacant and unoccupied, yet the plaintiff, from the circumstances, had a right to believe it was occupied, and had no notice of its being vacant, and the circumstances were such that it was a question of fact, for the jury to determine, whether the building was vacant, within the meaning of the policy. The plaintiff lived several miles from the insured building, which was a tenement house, and, a short time prior to the fire, was occupied by several tenants. Those several tenants were, by their leases, authorized to occupy the particular part let to them severally during the whole month of July. A son of plaintiff notified some of the tenants to move out, as it was proposed to have the house repaired. Others left of their own motion. The fire occurred on the night of July 21st. On the day before its destruction a carpenter, desiring to make an estimate of the cost of proposed repairs, went through the house, and found it unoccupied. It was vacant, with doors unfastened and windows broken. It was sought to be shown by the plaintiff that one tenant had a few articles in one room formerly occupied by him. Plaintiff contends that it must be a question of fact, to be determined by a jury, whether the house was vacant, and insists that it was error to instruct...