Vinton v. Atlas Assur. Co., Ltd.

• Decision Date: 07 May 1935
• Parties: VINTON v. ATLAS ASSUR. CO., Limited.
• Court: Vermont Supreme Court

178 A. 909

VINTON

v. ATLAS ASSUR. CO., Limited.

Supreme Court of Vermont. Orleans.

May 7, 1935.

Exceptions from Orleans County Court; Walter H. Cleary, Judge.

Action by Harry Vinton against the At las Assurance Company, Limited. Verdict and judgment for plaintiff, and defendant brings exceptions.

Judgment for plaintiff reversed, and judgment for defendant.

Argued before POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Superior Judge.

Raymond L. Miles, of Newport, for plaintiff.

Hubert S. Pierce, of Newport, for defendant.

MOULTON, Justice.

This is an action of contract upon a policy of fire insurance. The declaration is in the common counts, and the answer is the general issue and three special pleas. The first special plea alleges the failure of the plaintiff to give the required notice of loss, but this defense was not raised upon trial. The second alleges that the plaintiff permit ted the building covered by the policy to be used as a dance hall and thereby increased the hazard of fire, thus rendering the policy void under its terms. The third sets up that the building was, with the knowledge and consent of the plaintiff, wholly unoccupied for a period longer than ten days before the fire, which also by the terms of the contract rendered the policy void. The plaintiff's replication alleged a waiver of these provisions and an estoppel to insist upon them in defense.

Trial was by jury, with verdict and judgment for the plaintiff, and the cause is here on defendant's exceptions.

The policy covered a house "while used for dwelling purposes only," and provided that "unless otherwise provided by agreement in writing added hereto this company shall not be liable for any loss or damage occurring * * * while a described building, whether intended for occupancy by owner or tenant is vacant or unoccupied beyond a period of ten days," and in a rider attached to it: "vacancy (which includes unoccupancy) of the premises herein described shall not vitiate this policy provided the conditions of protection warranties 1, 2, 3, or 4 are applicable, otherwise such vacancy is limited to a period not exceeding thirty (30) days in addition to the period permitted by the policy conditions in any one policy year." And also this: "Protection warranty No. 1 as printed below is hereby made a condition of this contract * * * Warranty No. 1.' In consideration of the rate of premium at which this policy is written, it is warranted by the insured and made a condition of this contract that at the time when this policy is issued the property is located not over five hundred (500) feet from a public hydrant and within two (2) miles (measured on public highways) of a regularly organized and equipped volunteer or paid available fire department station."

The policy was issued November 25, 1933, and the loss occurred March 18, 1934. The tenant vacated the house on January 6, 1934, and it was not occupied thereafter except during the month of January three dances took place therein. The nearest hydrant was 1,282 feet distant, and the distance from the nearest available fire station did not appear.

At the close of all the evidence the defendant moved for a directed verdict on the ground that, on the uncontradicted evidence, the building was vacant and unoccupied beyond the period of ten days plus an additional period of thirty days, and was situated at a distance in excess of 500 feet from a hydrant. The motion was overruled, subject to exception.

The plea alleges only an unoccupancy of ten days, and states nothing concerning a further allowance of thirty days depending upon the application of the warranty to the situation. Yet its sufficiency was questioned only by the replication alleging a waiver of the matter of defense. So having shown that the premises had been vacant for at least ten days before the loss, the plea was supported, unless its effect was avoided by other provisions in the policy which permitted a longer period of unoccupancy. But this increased period was not enough, in view of the warranty which was the assurance of two facts, the distance of the house from the nearest hydrant, and the distance from the nearest fire station, and was broken by the falsity of either. A dwelling house is unoccupied when it is not used as a residence; when it is no longer used for the accustomed and ordinary purposes of a dwelling or place of abode; when it is not the place of usual return and habitual stoppage. Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 92, 33 A. 429, 30 L. R. A. 633, 51 Am. St. Rep. 457; Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162, 169, 39 Am. Rep. 644; Home Ins. Co. v. Boyd, 19 Ind. App. 173, 49 N. E. 285, 287; Schuermann v. Dwelling-House Ins. Co., 161 Ill. 437, 43 N. E. 1093, 1094, 52 Am. St. Rep. 377. The period here exceeded 40 days, and so the plaintiff was not entitled to go to the jury, unless there was evidence which, taken in the light most favorable to the plaintiff, tended to show a waiver of this provision of the policy.

The only evidence upon this issue was as follows: Shortly after the fire an adjuster, acting for the defendant, called upon the plaintiff to discuss a settlement of the claim. He was an independent insurance adjuster not employed by any one company, but accepting business from any company which saw fit to avail itself of his services, at a specified per diem charge. He was aware, as he testified, that as adjuster he could "waive certain rights" which the company had in reference to the policy. As a preliminary to the negotiations he requested the plaintiff to sign a nonwaiver agreement, which the latter refused to do. He testified that he called attention to several breaches of the policy conditions, and mentioned the violation of the provision concerning unoccupancy. If the nonwaiver agreement had been signed, he would have made a settlement if an agreement as to the amount of the loss could have been reached; but since the plaintiff refused to sign, he withdrew from the negotiation. The plaintiff testified that the adjuster told him that he would pay the face value of the policy if the fire had not been set. This the adjuster denied. The policy provides that: "No one shall have power to waive any provision or condition of this policy except such as by the terms of the policy may be the subject of agreement added hereto, nor shall...