Watertown Fire Ins. Co v. Cherry

• Decision Date: 17 November 1887
• Citation: Watertown Fire Ins. Co v. Cherry, 3 S.E. 876, 84 Va. 72 (1887)
• Parties: Watertown Fire Ins. Co. v. Cherry and Wife.
• Court: Virginia Supreme Court

3 S.E. 876

84 Va. 72

Watertown Fire Ins. Co.

v.Cherry and Wife.

Supreme Court of Appeals of Virginia.

November 17, 1887.

1.Insurance—Conditions—Vacancy of Premises.

A policy of insurance was conditioned to be void if the premises should become vacant, or if the policy should be assigned, or if the property should be incumbered, or if the title of the insured should be less than fee-simple, unless the written consent of the company should be indorsed.The conditions were broken, and no consent was indorsed.Held, that the policy was void, whether the breaches were willful and substantial or not.

2. Same.

A policy of insurance contained a condition that it should be void if the premises should become vacant, unless the consent of the company should be indorsed.At the time the fire occurred, the buildings insured were unoccupied, except that some fodder was stored in one of the outer buildings, and the premises were occasionally visited by a person who had the key.No written consent was indorsed on the policy.Held, that the policy was avoided.

3. Same.

A policy of insurance on buildings and furniture was conditioned to be void if the premises should become vacant, unless the written consent of the company should be indorsed.Insured vacated the premises, and moved the furniture to another house, and the insurance on the furniture was transferred, but no consent was indorsed to the premises being vacant.While vacant, the buildings were burned.Held, that the policy was void, as the transfer of the insurance on the furniture on its removal did not operate as a consent to the premises being vacant.

Error from circuit court, Norfolk county.

Jas. Christian, for plaintiff in error.Geo. Mcintoshand Borland & Wilcox, for defendants in error.

Lacy, J.This is a writ of error to a judgment of the circuit court of Norfolk city, rendered on the twenty-eighth day of November, 1885.The action was instituted in August, 1884, in the said court by the defendants in error against the plaintiff in error, as the "Watertown Insurance Company, " and the declaration being drawn accordingly, the same was upon motion amended as against the "Watertown Fire insurance Company, " and the case proceeded.The policy was issued on the sixth day of November, 1880, and was upon certain buildings situated on the alleged premises of the assured, Mrs. Cherry, and the furniture in the dwelling-house, which was one of the buildings insured, and was for $1,775, which included $500 on the furniture.The defendant pleaded non-assumpsit and several special pleas, which special pleas were first admitted by the court, and afterwards stricken out by the court, upon the ground that the defenses therein set forth were provable under the general issue.The policy provided that the same should become void unless consent in writing should be indorsed by the company thereon in certain stated instances, among them the following: If the assured is not the sole and unconditional owner of the property, or if any building intended to be insured stand on ground not owned in fee-simple by the assured, etc.; if the property should become incumbered, or if the policy be assigned or transferred before a loss; if any building therein insured should become vacant or unoccupied, etc.

The evidence showed that the property was a leasehold property on which the insured paid rent annually to her landlord; that an incumbrance was created by mortgage on the property; that the policy was assigned as collateral security to a trustee to secure a note; that the insured moved out of and vacated the dwelling and premises, removed to the village of Berkly, some miles off, and had her insurance transferred on her furniture in this new residence; and that the premises, including the dwelling, were wholly unoccupied up to the time of the fire, except that a...