Johnson v. Norwalk Fire Insurance , 175 Mass. 529 ( 1900 )

Lathrop, J.

The policy in this case declares that it shall be void, if, without the assent of the insurance company, “the premises hereby insured shall become vacant by the removal of the owner or occupant, and so remain vacant for more than thirty days without such assent.” The only question presented is whether on the evidence stated in the bill of exceptions the judge should have ruled, as matter of law, that, according to the terms of the policy, the plaintiff was not entitled to recover. We are of opinion that the judge was right in refusing this ruling, and in submitting the question to the jury.

Most of the cases relied upon by the defendant contained clauses very different from the one at bar. In Harrison v. City Ins. Co. 9 Allen, 231, the policy by its terms became void “ when the occupant' personally vacates the premises, unless immediate notice be given to this company, and additional premium paid.” No question was made as to the fact that the premises were vacated, and the only question was as to whether notice of the fact had been given to an agent authorized to receive notice. In Keith v. Quincy Ins. Co. 10 Allen, 228, the clause was: “ If the building insured remains unoccupied over thirty days without notice, this policy shall be void.” The building insured was a trip-hammer shop. The jury returned a verdict for the defendant, and the question before the court was upon the correctness of the ruling of the judge as to the meaning of the word “ occupancy.” In Ashworth v. Builders’ Ins. Co. 112 Mass. 422, the policy contained the following provisions: “ If the buildings insured shall be vacated, and remain so more than thirty days without the consent of this company, . . . this policy shall be void.” “ Buildings unoccupied are not covered by this policy, unless insured as such.” At the time of the taking out of the policy, and at the time of the loss, the property insured, namely a house and barn, were occupied only as follows : When the plaintiff was engaged in carrying on the farm contiguous to the buildings, he and his servants took their meals in the house, and the barn was used for the usual purposes of a farm barn for storing hay and farming tools, but cattle were not kept in it. The only discussion in the opinion is as to the meaning of the word “ unoccupied,” and it was held that these buildings were unoccupied. We find nothing in Newmarket Savings Bank v. Royal Ins. Co. 150 Mass. 374, which bears upon the question before us.

In the case at bar there is nothing said about occupancy, and no question arises as to whether the house was occupied or unoccupied. That which is provided for is the house becoming vacant by the removal of the owner or occupant. The words mean something more than a temporary absence for business or pleasure, and, as is said in Cummins v. Agricultural Ins. Co. 67 N. Y. 260, 263, “ they refer to a permanent removal and entire abandonment of the house.” See also Chandler v. Commerce Ins. Co. 88 Penn. St. 223; Franklin Ins. Co. v. Kepler, 95 Penn. St. 492.

On the evidence the jury would have been warranted in finding that there was no permanent removal of the plaintiff, and that his visits to Fitchburg were for the purpose of visiting his sick wife, and were temporary in their character. It does not appear that he intended to give up business in Natick when he left with his wife on June 8,1897, and we are not called upon to pass upon the question whether, if he so intended, his subsequent visits to the store could prolong the policy after thirty days from the time he first left. Exceptions overruled-