Terwilliger v. Union Fire, Accident & General Ins. Co
| Decision Date | 12 December 1938 |
| Docket Number | 16899 |
| Citation | 185 So. 43 |
| Parties | TERWILLIGER v. UNION FIRE, ACCIDENT & GENERAL INS. CO |
| Court | Court of Appeal of Louisiana — District of US |
R. E Baird, of New Orleans, for appellant.
St Clair Adams & Son, of New Orleans, for appellee.
On August 24, 1933, the defendant issued a policy of fire insurance to the plaintiff, Martin Terwilliger, whereby it insured, for the period of one year, his dwelling located at Yoloskey, St. Bernard Parish, Louisiana, for the sum of $ 1,500 and the contents thereof for $ 250. On June 20, 1934 at about 12 o'clock midnight, the property was completely destroyed by fire. Thereafter, a demand was made by the plaintiff upon the defendant company for the payment of the insurance and, upon the latter's refusal to accede to his request, he filed this suit for recovery under the contract.
The insurance company admits that the plaintiff's dwelling was totally destroyed by fire while the policy was in full force and effect but it sets up the following special defenses in avoidance of any liability under the contract: (1) that plaintiff permitted the dwelling to remain unoccupied for a period of 112 days without its knowledge or consent: (2) that he had procured other insurance on the property without its knowledge; (3) that he violated a clause in the policy relating to fraud and false swearing before and after the loss; and (4) that he burned the premises for the purpose of fraudulently collecting the insurance.
The case proceeded to trial on these issues and resulted in a judgment in favor of the defendant. Plaintiff appealed but, having died during the pendency of the matter in this court, his widow, the duly appointed administratrix of his succession, has been substituted as party plaintiff in the proceeding.
The facts of the case are not seriously disputed and we find them to be as follows:
For a long time prior to the issuance of the policy by the defendant, the plaintiff was the owner and occupant of a combined dwelling house and store situated at Yoloskey, Louisiana, which is a small settlement in St. Bernard Parish. He had this property and its contents insured against fire in the Louisiana Mutual Benevolent Association of Shreveport, La., for the sum of $ 2,100. On August 24, 1933, he caused the defendant company to issue to him a policy covering the dwelling house portion of the property and its contents for $ 1,750. After the issuance of this policy, plaintiff resided on the premises until March 1, 1934, when he discontinued his business at Yoloskey and moved to New Orleans where he lived until the date of his death. The fire occurred on June 20, 1934, and, at that time, no one was occupying the premises.
The defendant insurance company claims that, since the plaintiff concedes that he did not live upon the insured property from March 1, 1934, until the date of the fire, a period of 112 days, it is not liable to him under the policy and it points to the following condition in the contract in substantiation of the contention:
Plaintiff, however, asserts that the above quoted condition was not violated by him because it was his habit to visit the insured premises at least once or twice a week from March 1, 1934, until the date of the fire and that on some occasions he even spent the night there. He further says that the property was not unoccupied because he had one of his neighbors in Yoloskey watch the premises for him. This neighbor, one Serigne, testified that the plaintiff had asked him to take care of the place and that, when he was not working, he sometimes kept an eye on the premises.
The condition of the contract hereinabove set forth is free from ambiguity and clearly defines the term "unoccupied" as meaning "a dwelling that is entirely furnished, but with personal habitants temporarily absent." The courts of this country have on numerous occasions construed similar occupancy clauses in fire insurance contracts and it has been universally held that a dwelling is not in a state of occupancy unless there is in it the presence of human beings using the same as their customary place of abode. See Herrman v. Adriatic Fire Ins. Co., 85...
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