Stupetski v. Transatlantic Fire Ins. Co.

• Decision Date: 21 April 1880
• Court: Michigan Supreme Court
• Parties: STUPETZKI v. TRANSATLANTIC FIRE INSURANCE CO.

5 N.W. 401

43 Mich. 373

STUPETZKI v. TRANSATLANTIC FIRE INSURANCE CO.

Supreme Court of Michigan

April 21, 1880

Where a policy of insurance provided that the same should be void if the premises became vacant and unoccupied, held, that a mere temporary absence of the occupants, as where they were called away to visit a sick relative, would not render the policy void.

Error to superior court of Detroit.

John C Donnelly, for plaintiff in error.

M.E Dowling, for defendant in error.

CAMPBELL, J.

Plaintiff sued defendant on a policy of insurance, for the destruction of his dwelling and contents by fire. The policy was, by one of its conditions, made void, if the house should "become vacant or unoccupied," without assent of the company. The fire which destroyed the property was on September 4, 1879. Plaintiff used the premises as his own dwelling. About 10 days before the fire he received a telegraphic dispatch from South Bend, Indiana, announcing that his daughter, who lived there, was dangerously ill, and at the point of death. He, with his wife and another daughter, at once went there, intending to return, and he did return the next day but one after the fire. A son who was not boarding at home was directed to and did visit the house daily, to look after the house and feed the stock. The court below instructed the jury that this was enough to require the house to be regarded as vacant and unoccupied, and directed a verdict for the defendant.

There is not much authority upon this precise form of condition but we think it must be construed as it would be usually understood by ordinary persons reading and acting on it. We think it would not convey to an ordinary mind the idea that a house is vacant or unoccupied when it has an inhabitant who intends to remain in it as his residence, and who has left it for a temporary purpose. If the phrases were used in their strict legal sense no one would imagine that the tenant was not such an occupant as would be liable to the responsibilities attached by law to occupants, or that there was such a vacancy of possession as would suspend possessory rights. It would be burglary to feloniously break and enter the house, and arson to maliciously burn it. There may be less occasion to care for a house in which no one lives, than for one tenanted, but a person temporarily absent will usually take some pains to have his premises kept under oversight, and in the...