Stone v. Granite State Fire Ins. Co.

• Citation: 69 N.H. 438,45 A. 235
• Parties: STONE v. GRANITE STATE FIRE INS. CO.
• Decision Date: 17 March 1809
• Court: Supreme Court of New Hampshire

45 A. 235

69 N.H. 438

STONE

v. GRANITE STATE FIRE INS. CO.

Supreme Court of New Hampshire. Merrimack.

March 17, 1809.

Action by George R. Stone, executor, etc., against the Granite State Fire Insurance Company. The case was taken from the jury by agreement, and stipulation for judgment. Judgment for plaintiff.

Assumpsit upon a fire insurance policy dated June 10, 1895, issued to "Uriel Rollins' estate." The descriptive part of the policy is as follows: "$1,000 on their 1 1/2-story frame dwelling house and ell. $300 on their frame barn connected. $200 on household furniture, beds and bedding, pictures and frames, crockery and glassware, silver and plated ware, provisions, wearing apparel of family, and fuel therein. Occupied by the widow of Uriel Rollins, deceased. Situate in East Andover, N. H." August 10, 1897, during the term of the policy, the insured buildings, situate on a small farm about half a mile from the village of East Andover, were totally destroyed by fire. Proof of loss was duly furnished, and suit brought January 27, 1898. The schedule of loss contained no items of wearing apparel. The names of Julia A. Rollins, Hannah Wells, Mary A. Cutts, Bertha Prescott, and Maria Hammond are indorsed upon the writ as plaintiffs in interest. The defendants pleaded the general issue, with a brief statement (1) that the policy sued upon was at the time of the loss, by its express terms and conditions, void and inoperative, because said insured premises became vacant by the removal of the said owner or occupant on May 20, 1897, and continued to remain vacant until after August 10, 1897, without the printed or written consent of said company indorsed on said policy; (2) that the estate of Uriel Rollins had no insurable interest in the property insured, and sustained no loss or damage by reason of said loss by fire. The policy contained the following condition: "This policy shall be void and inoperative during the existence or continuance of the acts or condition of things stipulated against as follows: If without such assent [the assent in writing or in print of the company] the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of the insured, be altered so as to cause an increase of such risk, * * * or if the premises hereby insured shall become vacant by the removal of the owner or occupant, and so remain vacant for more than thirty days, without such assent." May 21, 1897, Julia A. Rollins, widow of Uriel, and occupant of the premises at the date of the policy, on account of the state of her health, left the premises, intending to remain absent until the latter part of August, and taking with her only clothing necessary for such an absence. The furniture, provisions, and other household effects were left ready for use upon her return. John D. Aiken leased the land connected with the premises, and had the use of the barn and charge of the premises during her absence. He stored some hay and farming tools in the barn, had the keys of the house, and went into it in the daytime at least twice a week. On these occasions he went into each room, tried the windows, and saw that they and all outside doors were securely fastened. The premises were not in any other way occupied as a residence by any person from May 21st until the fire. Subject to the plaintiff's exception, Stone testified upon cross-examination that he was aware that the following was one of the rules of the New Hampshire Board of Underwriters, under which he understood all policies in this state were issued: "Farm buildings, outbuildings, and contents. First month, free of charge. For each month thereafter short rates of one per cent. per annum shall be paid. Dwellings temporarily vacated by families, leaving furniture therein, shall not be considered occupied unless some person is left in charge of the premises and residing therein." There was no evidence that the plaintiffs in interest had any knowledge of this rule. Mrs. Rollins understood that if she abandoned the premises as a residence, and went to live elsewhere, it would be necessary to have the house insured as unoccupied. Neither Stone nor the defendants had any knowledge or notice of her absence. The will of Uriel Rollins gave to his wife a life estate in the buildings insured, and the use of all the testator's household furniture and effects, with the right to sell any of the furniture not wanted by her, and gave to the other plaintiffs in interest, who are also residuary legatees, "whatever of my property may be left at the decease of my wife, the use and possession of which I have given her by this will." Stone was appointed executor October 10, 1893, and took out the policy at its date. He was not an agent of the defendants authorized to write policies, but sent in applications to them, upon which policies were written in the home office. He did so in this case, and paid the premium from funds of the estate. He settled his account as executor February 25, 1890, having paid all debts of the estate, and turned over all property of the estate to the legatees. The property destroyed under the third item in the policy was valued at $222.23, of which $71.20 in value had been the property of Uriel Rollins in his lifetime, and the balance was property of Mrs. Rollins. The plaintiff having introduced evidence tending to prove the foregoing facts, the defendants moved that a verdict be directed for them. By agreement the case...