Citation Numbers: 83 N.Y. 133, 1880 N.Y. LEXIS 462
Judges: Danforth
Filed Date: 12/7/1880
Status: Precedential
Modified Date: 10/19/2024
As to the plaintiff's loss from a cause within the terms of the policy, there is no dispute, and he is entitled to the indemnity for which he bargained, unless there was on his part a violation of some condition or warranty expressed in that instrument. The amount of the loss, however, was in issue upon the pleadings. The recovery was justified by the plaintiff's evidence, but it is claimed by the learned counsel for the appellant that such evidence was improperly received, and whether it was or not is the first question to be considered. *Page 137
The application on which the policy issued contains no statement as to the value of the buildings, nor was the defendant misled in respect thereto. The insurance asked for was $7,000 on the dwelling and $2,000 on a barn described as 100 feet from the house. These things are recited in the policy, there brought together and stated in these words: "$9,000 — five years — $100." Payment of the premium is admitted on the face of the policy, and in consideration thereof the defendant promised to pay to the assured all such loss or damage not exceeding $9,000, "as shall happen by fire to the property as above described, during five years from the first of April, 1872, to be estimated according to the actual cash value of the property at the time the fire shall happen;" and a loss having occurred, the assured is required by subdivision 11 of the policy to give forthwith an account thereof, showing among other things "what was the whole cash value of the subject insured." The policy also contained a condition declaring it to be of no force and effect in case "the above mentioned premises * * * become vacant and unoccupied, or the hazard otherwise increased * * * without special agreement indorsed on this policy." The complaint alleges the burning of the dwelling-house April 3, 1875, the other facts above alluded to, and that by reason thereof the whole sum for which the house was insured became due to the plaintiff. The defendant admits the insurance, and averring in the language of the policy above set forth; that the loss was to be estimated according to the actual cash value of the property at the time the same shall occur, alleges "that it was not then of the cash value of $7,000, but that its cash value did not exceed $3,000." Under the policy and the issue made by the pleadings it was incumbent on the plaintiff to prove the fact stated, viz., the actual cash value of the property at the time it was destroyed. The evidence objected to was given for that purpose, and the particular question put to each witness appears to have been so framed that it would meet the limitation prescribed by the twelfth section of the policy, to wit, that the cash value of the property destroyed should in "no case exceed what would be *Page 138
the cost to the assured at the time of the fire, of replacing the same." Blake therefore was asked, "have you made an estimate of what it would cost at the time of the fire to build such a house in that location?" and after answering that he had, and giving some intermediate explanation, put it at $8,055.68. Such in substance was the course pursued with other witnesses whose testimony varied as to the amount and whose means of information were more or less ample. Blake was a carpenter and builder, Bonney an architect, Harris an insurance and real estate agent, but had of late been engaged in appraising similar property, had formerly worked in the erection of buildings, being by trade a "tinner and plumber." He says: "I built a good many." Duryea had built houses and had bought and sold others. He was also a real estate appraiser, knew the house in question and its condition. Slater was a house painter, had built houses, and knew and had examined the one covered by the policy. These witnesses were all competent to express an opinion upon the question submitted to them, for they had some knowledge of the cost or market value of such property, acquired as dealers or builders. (Bedell v.L.I.R.R. Co.,
It is also urged that by the terms of the proposal for insurance, the plaintiff warranted, at the time the application was made, the building was used as a dwelling, "whereas it was vacant and unoccupied." It would, I think, be a sufficient answer to this position, that such defense was not set up in the pleadings, but without insisting upon that objection, it does not seem well founded. It rests upon the language of the application. Under the heading "Survey," are several questions unanswered, and then the following: "Building; is it brick or wood? A. Wood;" there are questions as to its "condition," "When built?" "How many stories high?" "Whether it was ever on fire?" then the question "For what purpose used?" "State fully" A. "Dwelling." This is not susceptible of the interpretation given to it by the learned counsel for the appellant. The question does not call for the present as distinguished from the appropriate use of the building. It relates to a "building," and is intended to elicit information as to whether it is for traffic, as a store, or mechanical purposes, as a shop; it is, as if the questioner asked, for what is the building designed or fitted? And the answer is descriptive, not of any present occupation or actual use, but simply of the class or character of the building. We find confirmation of this view in the provision of the policy that if the "premises are at any time during the period for which it would otherwise continue in force, used for more hazardous purposes than that called for in the original contract of insurance, the policy shall be of no force."
The contract thus referred to calls for or describes as the subject of insurance "a two story frame dwelling-house," and the two phrases have an evident relation to each other. The inquiry and the answer in the application enter into the policy, and furnish a criterion by which to limit the responsibility of the insurer. The answer also shows that this was the understanding of the defendant. It set up as a defense that the plaintiff on or about the 1st of January, 1874, without the knowledge of the defendant, and against its will, used the first story of the building or dwelling-house, or a part of said building *Page 140
in said policy mentioned, as a depository or place for storing loose straw or hay, and continued to make or suffer such use from thence until and at the time of the fire in the complaint alleged, "and that for this additional risk they never charged or received any premium," and therefore they say the policy became void. It is nowhere stated that the defense was a breach of warranty as to the occupation of the house at the time the policy was issued. The cases (Alexander v. Germania F. Ins. Co.,
In the next place, the defendant was informed, at the time the application for insurance was made, that the house was then unoccupied and vacant, and with knowledge of this fact the premium was taken and the policy issued; the defendant, therefore, cannot be permitted to say it never assumed the risk. (Van Schoick v. Niagara Fire Ins. Co.,
"1st. The plaintiff has not shown affirmatively that he has fulfilled all the conditions of the policy.
"2d. The plaintiff has not made out his case affirmatively on the subject of the valuation of the property destroyed.
"3d. It has been shown by the plaintiff's own witnesses that the property was vacant and unoccupied during the term of the policy; before Harris and Brunt occupied them, and the non-occupation at any time during the existence of this policy made it void. The motion was denied by the court and the ruling excepted to by the defendant."
And at the close of the whole evidence it was renewed by defendant's counsel on the same grounds, "and" as is said "particularly upon the third ground that the evidence shows the premises were vacant and unoccupied when the policy was issued, and as a matter of law that fact made the policy void, and of no effect." Moreover, the defendant's counsel asked the court to charge: "If the jury find from the evidence that the dwelling became vacant and unoccupied before the fire, or was so vacant and unoccupied at the time of the fire, without special agreement indorsed on the policy, the policy then became of no force and effect, and no recovery can be had." The learned court complied with the request and so charged. It was thus assumed that as to this main and important fact, there was evidence for the consideration of the jury, and they having answered the question *Page 143 submitted to them, it is too late now for the appellant to assert the contrary. But if it was otherwise it is clear that the question was one proper for the jury. (Grant v. Howard Ins.Co. of N.Y., 5 Hill, 10.) With the exception of a few days at the time of issuing the policy, the brief but uncertain period in 1874, before referred to, the house was rented and occupied by tenants, and so it was up to April 1, 1875. The day before the fire occurred Slater was in the house, to consider what need it had of repairs, and on cross-examination by defendant's counsel was asked what he saw, he said "I saw some articles of furniture there, I believe," in one of the rooms on the first floor. Other rooms were locked, and those he did not enter. His testimony upon this point is of little importance, but it was given in behalf of defendant, and does not show that the house was vacant. The defendant also sought to prove this fact by two witnesses, testifying to admissions by the plaintiff. They were, however, contradicted by him. He swore that he did not make the admissions, and the jury must have believed him. The defendant also examined two witnesses, Harris and Brunt, by commission. They were the last tenants of the house. Harris says: "The occupancy ceased when my things were burned up. I don't think it ceased at all, I asked the agent if I could not get all my things out by the first of April, whether I could keep them in there, and he said I could," and to another interrogation put by the defendant he says, "my occupancy ceased when my things were burned up." The same witness says he "kept a horse and occupied, as tenant, the barn and carriage-house, and continued to do so at the time of and after the destruction of the dwelling-house by fire."
It is not necessary to decide whether the vacancy, under the terms of this policy, must be a vacancy of the entire premises, or whether each subject of insurance stands by itself under the condition, for in the latter view the case went to the jury, and this was not only the defendant's wish, but it was most favorable to it. It was matter of defense, and to be made out by it. It could not have been decided in its favor as a question of law. A vacant house is literally an empty house. This *Page 144 house was not shown to be empty. There were some things actually seen in it, rooms locked, and not examined, affirmative testimony that the tenants' "things;" and these things, the jury might hold under the evidence, to have been the tenant's furniture, were there, and were burned up. Its value is not given, nor are the articles enumerated. The law affords no rule to determine the value or the quantity of property, household stuff or other chattels, which kept upon the premises limits the risk to that of a dwelling-house, or prevents such a dwelling-house from becoming within the language of insurance, one "more hazardous." The insurers might have covered this question by a stipulation, but they have not done so. One or more persons may live in a house, and in either case it is occupied. They may have much or little furniture, and in neither event is it vacant. Doubtless the contract is to be enforced according to its true spirit, but its meaning must be obvious, and require no straining in order to provoke a forfeiture.
These views cover the questions made by the defendant, and lead to the conclusion that upon the trial no exception was well taken, and that the judgment appealed from should be affirmed.
All concur.
Judgment affirmed.