The North Am. Fire Ins. Co. v. Zaenger
| Citation | 1872 WL 8216,63 Ill. 464 |
| Parties | THE NORTH AMERICAN FIRE INSURANCE COMPANYv.CHRISTOPH ZAENGER. |
| Decision Date | 30 June 1872 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
WRIT OF ERROR from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.
Mr. J. BAKER, for the plaintiff in error.
Mr. G. KŒRNER, for the defendant in error.
This was an action of assumpsit, brought by defendant in error in the St. Clair circuit court against plaintiff in error, on a policy of insurance. The policy, amongst others, contained this condition:
“Or if during the continuance of this policy the above mentioned premises shall be occupied or used so as to increase the risk, or shall become vacant and unoccupied, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever within the control of the assured, without the assent of this company endorsed hereon, etc. * * * then, and in every such case, this policy shall be void.” And the declaration, among other things, “avers that plaintiff has not, during the continuance of said policy, permitted the said premises to be occupied or used so as to increase the risk, or to become vacant or unoccupied, or the risk to be increased by the erection or occupation of neighboring buildings, or by any means whatever within his control.”
On the trial, defendant in error introduced and read in evidence his statement, under oath, of the loss, in which he says “there was no person living in the house at the time, the tenant having left some three weeks before the fire.” There is no averment or proof that the house was vacant and unoccupied with the assent of the company. This condition is in the nature of a warranty by the assured that the house should not become vacant if within the control or power of the defendant in error to prevent it. This is the fair and reasonable import of the language, and is the construction the pleader, in drawing the declaration, has put on this condition, as he avers that the house did not become vacant by any means under his control.
To recover, then, it was necessary that this condition should be performed, or it should have been shown that the vacation of the house was beyond the control of defendant in error. That was his undertaking, and he was bound to observe it. When he introduced his own affidavit in evidence, he proved that the house was and had been vacant for some three weeks, and he...
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