Seubert v. Fidelity-Phenix I. Co. , 29 S.D. 261 ( 1912 )

CORSON, J.

This is an appeal by the defendant from a judgment entered in favor of the plaintiff, and from the order denying a new trial. The action was institutéd by the plaintiff to recover the sum of $1,000 upon a policy of insutance issued by the defendant upon a certain dwelling house in the city of-Sioux Falls, which was totally destroyed by fire. The complaint is in the usual form, and the only defense interposed by the defendant is that the house became “vacant or unoccupied,” and remained so for 10 days within the meaning of the clause in the standard South Dakota fire insurance form which provides that the “entire policy, unless otherwise provided by agreement endorsed thereon, or added thereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days." At the close of all the testimony, both parties moved the court for a direction of a verdict, and the case was submitted to the court; findings of fact being waived. The court thereupon entered a judgment in favor of the plaintiff and against the defendant for the sum of $1,061.60, being the amount of the policy, interest, and costs.

The only question .presented by the record seems to be as to whether or not the facts warranted the court in holding -that the premises had not become “vacant or unoccupied," and so remained for 10 days prior to the fire. It is disclosed - by the evidence that the building was occupied by Margaret Filber, a tenant, at. the time the-policy was issued as a boarding house; that on or about the 27th clay of September, more than 10 days prior to the fire, the principal part of the furniture was moved to another house, in the vicinity, and Mrs. Filber, with a woman assisting her, lived thereafter at the new place of residence; that Mrs. Filber’s husband and hired man slept for several nights thereafter at their former residence, and so continued to occupy the same nights until within about five'or six days of the.time of the fire; and that the horses, chickens, etc., belonging to the husband remained in a barn upon the premises until the husband finally left and joined his wife at the new place of residence.

It is contended by the defendant that when Mrs. Filbert, the tenant, left the premises and moved a larger part of the furniture therefrom, the house became “vacant or unoccupied” within the meaning of the clause contained in the policy. The respondent, however, in support of the judgment of the court below, insists that as the house was occupied by the husband and his hired man nights for sleeping purposes and the horses, chickens, etc., were retained upon the premises, and a paid of the furniture still remained in the house, the same did not become vacant or unoccupied within the meaning of the terms of the policy, and that the court was, therefore, right in entering judgment in favor of the plaintiff. We are inclined to take the view that the respondent is right in his contention, and that, under -the evidence, the house did not become “vacant or unoccupied,” and so remain for ¡to-days prior to the fire. It is quite clear that the house was not “vacant” for a period of 10 days prior to the fire, as there was-some furniture belonging -to the tenant still remaining in the house. In Woodruff v. Imperial Fire Ins. Co., 83 N. Y. 133, the learned-Court of Appeals of that state, in discussing a similar question, says: “A vacant house is literally an empty house. This house was not shown to be em-p-ty. There were some things actually seen in it,” etc. It seems equally clear that the house was not “unoccupied” for 10 days previous to the fire as the husband of the tenant, Mr. Filber, and his hired -man, -slept in the-house up to within 5 or 6 days of the fire. So long as a part of the furniture remained in the house and the same was occupied nights.by the husband of the tenant and his hired -man, and he-had his live stock on the premises, it cannot properly be said that it was vacant or unoccupied.

The authorities upon the question of what constitutes vacancy or nonoccupancy within the meaning of the clause in the policy are numerous, and the circumstances involved in each case are so different it is difficult to extract from these authorities any general rule upon the subject. As before stated, it is quite clear the premises were not vacant within the meaning of that term as used in the policy, as we have seen in the case at bar a part of the furniture of the tenant was still in the house up to> within five or six days of the fire. It seems equally clear that the house was hot unoccupied within the meaning of the policy as it was in fact occupied by the husband .of the tenant and his hired man up to within five or six days of the fire. In Thieme v. Niagara Fire Ins. Co., 100 App. Div. 278, 91 N. Y. Strpp. 499, the Supreme Court, Appellate Divisions, First. Department, of the state of New York, held in an analogous case as appears by the headnote that: “Where plaintiff's husband who lived in another house on the same lot, placed a bed in the insured house after the tenant vacated, and slept there five nights each week, carrying on his business on the premises during the day, the house was not vacant and unoccupied for ten days within the forfeiture clause of the insurance policy.” In the .opinion the court in construing the forfeiture clause which is similar to that in the case at bar says: “The policy of insurance is the standard policy, and the question is whether at the time of the fire the premises were vacant or unoccupied within the meaning of the terms of the policy. To forfeit the policy, it was required that the premises should be or become vacant or unoccupied, and so remain for xo days. The fact that the plaintiff's husband did not sleep in the house on the night of the fire would not avoid the policy, unless the house was vacant or unoccupied, notwithstanding the fact that he was in the habit of sleeping there at least five nights a week during the period that the premises were unrented. The reasonable meaning to be given to this provision seems to me to be that a house does not become vacant or unoccupied so long as there are persons living in the house for some portion of each da30 • The plaintiff and her family lived in an adjoining house, and the premises in question had 'been rented and occupied by the tenant. When the tenant moved away, the plaintiff’s husband moved into the house. He was about the premises all day, attending to his business, which was carried on there, and at night he generally slept in the house that was destroyed. This, it seems to me, was an occupation of the house within the meaning of this provision of the policy. If the plaintiff had hired a man to look out for the house and occupy it until it was rented, the mere fact that occasionally he slept away from the house would not have made it a vacant or unoccupied house which remained vacant and unoccupied for io days.”

The court was clearly right, therefore, in holding that upon the undisputed evidence in the case the conditions in the policy relied on by the defendant were not violated, and that the plaintiff was therefore entitled to judgment. As bearing upon this question, though not directly in point, see Shackelton v. Sun Fire Office, 55 Mich. 288, 21 N. W. 343, 54 Am. Rep. 379; Home Fire Ins. Co. v. Peyson, 54 Neb. 495; 74 N. W. 960; Moody v. Insurance Co., 52 Ohio St. 12, 38 N. E. 1011, 26 L. R. A. 313, 49 Am. St. Rep. 699, and note; Imperial Fire Ins. Co. v. Kiernan, 83 Ky. 468; Halpin v. Ins. Co., 120 N. Y. 73, 23 N. E. 989, 8 L. R. A. 79; Continental Ins. Co. v. Kyle, 124 Ind. 132, 24 N. E. 727, 9 L. R. A. 81, 19 Am. St. Rep. 77, and note; Limburg v. German Fire Ins. Co., 90 Iowa, 709, 57 N. W. 626, 23 L. R. A. 99, 48 Am. St. Rep. 468.

The judgment of the court below and order denying a new trial are affirmed.