The German Insurance Company v. Russell

• Decision Date: 05 July 1902
• Docket Number: 12,063
• Citation: 65 Kan. 373,69 P. 345
• Parties: THE GERMAN INSURANCE COMPANY, OF FREEPORT, ILLINOIS, v. GEORGE E. RUSSELL et al
• Court: Kansas Supreme Court

69 P. 345

65 Kan. 373

THE GERMAN INSURANCE COMPANY, OF FREEPORT, ILLINOIS, v. GEORGE E. RUSSELL et al

No. 12,063

Supreme Court of Kansas

July 5, 1902

Decided July, 1902.

Error from Leavenworth district court; LOUIS A. MYERS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

FIRE INSURANCE -- Condition Respecting Occupancy -- Forfeiture of Policy. Where a policy of insurance contains a condition that if the buildings insured "be or become vacant or unoccupied, . . . without consent indorsed hereon . . . then, in each and every one of the above cases, this entire policy shall be null and void," and it is shown that the buildings were permitted to become vacant and unoccupied without the knowledge or consent of the company, and so remained for a period of twelve days, but were reoccupied before any loss was sustained, held, that when the property became vacant and unoccupied without the consent of the insurance company the policy became immediately forfeited; and further held, that reoccupancy before the loss occurred did not revive the forfeited policy.

Quinton & Quinton, and N. E. Van Tuyl, for plaintiff in error.

John H. Atwood, and William W. Hooper, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

This action was brought on an insurance policy for the loss of a residence destroyed by fire. The plaintiff below stated in his application that the property was occupied at the time as a dwelling for himself and family. The policy contained, among others, the following condition:

"This insurance contract is based upon the representations contained in the assured's application of even number herewith and which the assured has signed and permitted to be submitted to the company, and which is made a warranty and a part hereof; and it is stipulated and agreed that if any false statements are made in said application, or if the assured, without written permission hereon, shall now have or hereafter make or procure any other contract of insurance, whether valid or not, or if the above-mentioned buildings be or become vacant or unoccupied, or be used for any other purpose than is mentioned in said application, without consent indorsed hereon, . . . then, in each and every one of the above cases, this entire policy shall be null and void."

Within a year after procuring the policy, the assured and his family removed from the property, which was situated in the city of Leavenworth, and moved to the city of Lansing, where they have ever since resided. After the property was vacated by the assured, it was continuously occupied by his tenants until the 1st day of December, 1896, when the tenant then in possession vacated. Thereafter it was vacant and unoccupied until the 12th day of December. On the 13th or 14th day of December, the plaintiff commenced making repairs on the building, going from his home in Lansing, working on the property during the day and returning in the evening. This continued until the 17th. Thereafter he and his stepson, who was assisting him, slept in the house until, and including, the night of the 21st. There was some old furniture, of no special value, in the house, which had been left by the assured when he moved to Lansing. They had provisions, did their own cooking, and ate in the house. On December 22 the assured became sick, and he and his stepson returned to their home in Lansing. He did not again return to the premises until after the fire, which occurred on the night of the 26th of December, and there is no evidence in the record that any person representing him was at the house after December 22.

The defenses to the action were: (1) That the conditions and stipulations in the application were warranties on the part of the assured, one of which was that the house at the time was occupied as a dwelling by himself and family; and it was contended that when the assured removed from the house and rented it to a tenant, it was a violation of the warranty and forfeited the policy; (2) that, the property having become vacant on the 1st day of December, and so remaining until the 12th day of that month, without the consent of the insurance company indorsed on the policy, the policy became immediately forfeited, null and void, and the company released from liability, although the premises may have been thereafter and prior to the fire reoccupied; (3) that the property became vacant on December 1 and so remained until it was destroyed by fire, and for this reason the company was not liable. At the trial the plaintiff recovered judgment and the defendant prosecutes this proceeding. For the purposes of this opinion we shall treat the property as though it were occupied when the fire occurred.

The statement in the application that the property was then occupied by the assured as a dwelling for himself and family is not a warranty that it shall continue to be so occupied; it is only a warranty of the situation at the time the insurance is effected. (May, Ins. §§ 247, 248.) It is conceded that from the 1st to the 12th of December the property was vacant and unoccupied without the consent of the insurance company having been indorsed on the policy, and, in fact, without its knowledge.

The important question is, Did this vacancy terminate the policy or was the policy only suspended during this...