Shackelton v. Sun Fire Office

• Court: Supreme Court of Michigan
• Writing for the Court: COOLEY
• Citation: 55 Mich. 288,21 N.W. 343
• Parties: SHACKELTON v. SUN FIRE OFFICE.
• Decision Date: 19 November 1884

55 Mich. 288
21 N.W. 343

SHACKELTON
v.
SUN FIRE OFFICE.

Supreme Court of Michigan.

Filed November 19, 1884.

Error to Mason.

[21 N.W. 344]

J.B. McMahon, for plaintiff.

Hammond & Barkworth, for defendant and appellant.

[21 N.W. 345]

COOLEY, C.J.

The plaintiff sues as assignee of a policy of insurance issued by the defendant to Emma Norton, and insuring her against loss or damage by fire or by lightning, to the amount of $400, on her frame dwelling-house in Ludington, described in the policy as occupied by a tenant. One of the conditions of the policy was that “this policy shall become void unlesss consent in writing is indorsed hereon by or on behalf of the society if any building hereby insured be or become vacant or unoccupied for the purpose indicated in this contract, or become occupied in whole or in part for other and more hazardous purposes than those indicated in this contract.” Upon this condition the present controversy arises. The policy bore date May 7, 1883, and was for one year. The insured testified on the trial that her tenant left the house June 19, 1883. She was glad of this, because she wanted to ocuppy the house herself. She immediately moved her things into it; her furniture and all the goods she had. She was there in the house, occupied it, and expected to make it her home. She was getting ready, cleaning up, and doing all she could; her husband was sick, and she could only clean a little at a time, as she could not leave her husband long. On June 20th she started to take her husband to the dispensary at Chicago, and was gone not to exceed three days. She then stayed at home five or six days, leaving her things in the house all the while, but not staying there nights. Her father lived about 40 rods away, and she stayed nights and took meals at his residence. The witness also had work done in the garden attached to the house. Some five or six days after her return from Chicago witness went away to canvass for certain goods which she sold, and which were principally hair-work. She went for this purpose into north-eastern Michigan, and the house was burned July 4, 1883, before her return. On going away she put the premises in charge of Mr. Shackelton, who had an interest in them.

Upon this evidence, and some other not material to be here mentioned, the trial judge instructed the jury that “if a man insures his dwelling-house and lives therein at the time, and contracts not to let the building become vacant and unoccupied, he cannot, as a matter of fact, vacate it, absolutely leave it in that condition, and recover on a policy in case of loss. But if he goes off temporarily on business or matters for his own benefit, or otherwise,-temporarily, merely, with the intention of coming back to his place and there living, and with no intention of abandoning the place,-the contract will not be vitiated by that kind of a transaction. And had the tenant in this case gone away on temporary business before he surrendered up the premises to this Mrs. Norton, and had the fire occurred while the tenant occupied it, there would be no question but that the...