122 Me. 486 | Me. | 1923
These arc two actions of assumpsit on two policies of fire insurance issued severally by the defendants. The cases are reported to this court upon the following agreed facts: — ■
Each of the defendants insured the plaintiff under the Maine Standard Policy issued August 22, 1917, for three years against fire, the Narragansett $1,000, on neat stock not to exceed $75 on each; the Dirigo $1,100, on neat stock not to exceed $75 on each, $100 on vehicles, and $800 on horses not to exceed $200 on each.
At the time of the insurance the premises were occupied by the assured and her husband and continued so, to be until about June 1, 1919, when they were leased to Henry M. Dodge who before that lived near by and did the work about the place and barn of the plaintiff.
The plaintiff left there to be cared for by Dodge the personal property for which compensation is claimed and also some household furniture.
Dodge brought there his own furniture and several head of stock, which were also lost in the fire without insurance.
While the premises were under lease to Dodge on January 9, 1920, the buildings with their contents were totally destroyed by fire.
The defendants contend that they are not liable because of the provisions of a rider attached to the policies, the first paragraph of which reads “If the dwelling is not now personally and continuously occupied by assured, or becomes vacant by his removal, and so remains vacant for more than ten days without a written or printed assent of the company, this policy shall be void.”
If this contention is correct and constitutes a defense judgment is to be for the defendant, otherwise for the plaintiff.
The full policy need not be printed but may be used by either party.
Five of the neat stock were kept by Dodge and the plaintiff paid him therefor, the balance of the neat stock and the vehicles, harnesses and robes were leased with the premises to Dodge, all owned by the plaintiff. Lost twenty-six cows, one bull and one horse (being kept for the plaintiff) and the vehicles, etc.
The defendants’ counsel in his brief claims that these two policies were void for the reason, 1. “that the plaintiff did not personally and continuously occupy the premises from the issuance of the policies to the date of the fire, in accordance with the terms of the rider attached thereto.”
2. “because the understanding agreement and warranty between this plaintiff and these defendants was that she, the plaintiff, was then occupying the buildings and that she would occupy them personally and continuously during the times for which these policies were issued, or that the policies should be void.”
3. “that such conclusion is the only tenable interpretation of the insurance contract between the parties.”
This contention we are not able to sustain. The rider does not contain language from which such conclusion can fairly be drawn. Considered as a whole, it leaves no doubt as to the intention of its author. Provision is made for, and a limitation fixed in case of, a vacancy, — a limitation of ten days, as against that of thirty days as in the body of the policy.' The latter provision would never have been made had the parties agreed that the plaintiff and none other should occupy the premises during the terms of the policies. The true interpretation of the rider is that the buildings should be occupied
See Cumberland Valley Mut. Protection Co. v. Douglass, 58 Pa., 419, 98 Am. Dec., 298; May on Insurance, Vol. 1, Page 501; 19 Cyc., 687; Kimball v. Aetna Ins. Co., 9 Allen, 540; Garnwell v. Merchants &c. Fire Ins. Co., 12 Cush., 167; Foy v. Aetna Ins. Co., 3 Allen, 29; Somerset Co. Mutual Fire Ins. Co. v. Usaw, 112 Pa. St., 80. A standard insurance policy being prepared by the. insurers should be construed when the meaning is doubtful, most favorably to the insured, who had nothing to do with the preparation thereof. Matthews v. American Central Ins. Co., 154 N. Y., 449, 39 L. R. A., 433; Rickerson v. Hartford Ins. Co., 149 N. Y., 307, 313. A liberal construction of an insurance policy, if it is a reasonable one and will prevent injustice, should be adopted when a literal construction would lead to manifest injustice. Idem.
Without the rider the policy in shit provided for vacancy by removal of the “owner or occupant,”- — clearly contemplating occupancy by a possible tenant, as well as by the owner. The terms are plain, and a violation of the same releases the insurer from liability. “The standard policy by its terms is declared void if the premises become vacant by the removal of the owner or occupant, and so remain for more than thirty days without the assent of the company, in writing, or in print, irrespective of the question whether such vacancy materially increases the risk or not.” Knowlton v. Patrons Androscoggin Fire Ins. Co., 100 Maine, 481. But the dwelling-house never became vacant. It was occupied by a tenant as a place of abode- at the time of the fire. The tenant moved in when the plain-' tiff moved out. For a dwelling-house to be occupied within the meaning of such condition, it must be occupied by human beings as their customary place of abode. Herman v. Adriatic Fire Ins. Co., 85 N. Y., 162.
If it was intended by the insurers to insert words in the rider which should avoid the policy if the plaintiff did not continuously occupy the premises until the expiration of the risk by limitation, such intention is not apparent from the record.
The entry will be,
Judgment for the plaintiff in both cases.