92 N.J.L. 108 | N.J. | 1918
The opinion of the court was delivered by
The plaintiff in an action brought against the defendant, on a contract of fire insurance, recovered a verdict of $1,000. Counsel of defendant, on a rule to show cause allowed, presents three reasons on which he relies for making the rule absolute. The first two reasons relate to the refusal of the trial judge to grant a non-suit, and, at the close of the case, to direct a verdict for defendant. The third reason is based upon an alleged error in that portion of the judge’s charge, where he instructed the jury, as follows: “If the dwelling be or became vacant or unoccupied, except in accordance with the conditions of this policy, the entire policy is void,” was without force or effect.
The agreed facts are, that the defendant company issued to the plaintiff a policy of insurance for a period of three years, for the sum of $1,000, upon the plaintiff’s barn, for which the latter paid defendant company a premium of $20; that the barn was destroyed by fire and that the verdict of the jury for the amount of the policy was proper, if the plaintiff was entitled to recover at all under the terms of the policy.
Upon the premises, where the bam stood, was a dwelling about three hundred yards distant from the barn, which dwelling had been for more than ten days previous to, and was at the time of the fire unoccupied.
It is important to mention here that none of the above recited conditions is to be found in the standard form policy. The latter contains this provision: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, 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.”
The act of 1912, amendatory of the act of 1902, entitled “An act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance in this state” (Comp. Stat., p. 2862), by section 77, placitum 3, among other things, provides: ' “Any policy issued contrary to the provisions of this section shall nevertheless be binding upon the company issuing the same.”
On the one hand it is insisted by counsel of defendant that because it is an admitted fact that the dwelling situate on the- farm was vacant for more than ten days before the barn burned down, therefore, according to the condition of the “Farm Form” the entire policy became void; and, on the other hand, it is contended, by counsel of plaintiff, that the condition of the standard policy must control the contract
Before taking up the consideration of the question presented it is important to observe that placitum 2 of section 77, supra,, provides that the standard policy shall contain printed or written forms of description and specifications, or schedule of the property covered by any particular policy, and any other matter necessary to clearly express all the facts and conditions of insurance or any particular risk, which facts or conditions shall in no ease he inconsistent with, or a waiver of, any of the provisions or conditions of the standard policy provided for bjr the act, may bo written upon or attached or appended to any policy issued on property in this state.
What the effect of this provision is leads to the inquiry whether or not the facts or conditions imposed by the “Farm Form” are inconsistent with, or a waiver of, any of the provisions or conditions of the standard policy, for if this should prove to be the case, then such provisions or conditions, of the “Farm Form,” as are inconsistent or a waiver, must he treated as a nullity. Is, therefore, the provision in the “Farm Form,” “If the dwelling be or becomes vacant or unoccupied, except in accordance with the conditions of this policy, the entire policy is void,” inconsistent with or a waiver of the provision or condition of the standard policy, which provides that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void, if a building, therein described, whether intended for occupancy by owner or tenant, he or become vacant or unoccupied, and so remain for ten da vs ?
It is next argued, by counsel of defendant, that the barn was vacant and unoccupied and had remained so for ten days previous to the day of the fire, and, therefore, there should have been a direction of a verdict for the defendant. Of course, the occupation of a barn necessarily and radically differs from a dwelling-house. In order to occupy a bam within the meaning of the policy it does not require the insured to live or sleep in it. It is a sufficient compliance with the terms of the policy if the property insured is put to the use contemplated by the parties, as expressed in the contract of insurance. Hampton v. Hartford Fire Insurance Co., 65 N. J. L. 265, 267; 47 Atl. Rep. 433; 52 L. R. A. 344.
Courts are averse to forfeitures. They frown upon them. A court will seek a construction of a forfeiture clause in a policy which will sustain it, even though a construction which will defeat it is reasonably deducible from the terms or words used to express it. Hampton v. Hartford Insurance Co., supra
At any rate this much is clear, that the condition in the “Farm Form” and the one in standard policy, relating to the forfeiture tend to create, at least, an ambiguity, and, therefore, a construction, which will avoid a forfeiture will bo adopted.
In Snyder v. Insurance Company, supra, Mr. Justice Depue (at p. 550), in delivering the opinion of the Court of Errors and Appeals, aptly said: “Policies of insurance against fire are taken out by all classes of persons, educated and uneducated, and no rule of law is more salutary that the conditions in these instruments, expressed in terms ambiguous and capable of misleading shall not be allowed to avoid the contract.”
An examination of the evidence amply tends to establish that the barn was not vacant hut occupied at and previous to the time of the tire; that the plaintiff kept liis horses there up to three weeks before the fire, and that at the time of the fire the plaintiff had carts, wagons, farming implements and other property there, and which had been made use of almost daily up to the time of the fire; that a man named Fenton, who rented of the plaintiff, visited the barn frequently within two or three days of the fire, and once on the day' of the fire to get one of his fanning implements, which he kept there.
We think from the use that was made of ihe barn, the jury was warranted in finding that the barn was occupied before and up to the time of the fire.
The rule lo show cause is discharged, with costs.