Cummins v. . Agricultural Insurance Co.

67 N.Y. 260 | NY | 1876

At the General Term this case was decided mainly upon the authority of the case of Paine v. The Same Defendant (5 N Y Sup. Ct. [T. C.], 619). The policy in that case contained a provision that should the house insured be left unoccupied without giving immediate notice to the company the policy should be void. The occupants, being husband and wife, separated and left the house uninhabited for several weeks, though their household effects were left upon the premises and the husband occasionally went there. The Supreme Court held that the house was left unoccupied within the meaning of the policy. After that decision it appears that the defendant changed the form of its policies, and in the one now in question in place of the provision that leaving the house unoccupied should avoid the policy, inserted the clause that if the house should becomevacated by the removal of the owner or occupant the policy should be void, etc. The court below expressed the opinion that there was not, in effect, any substantial distinction between the language used in this policy and that used in the policy in the Paine case, or such as would allow the court to depart from its decision in that case.

The question is not free from difficulty, but it seems to us that there is a material distinction between the two provisions. In the case of Paine the mere fact that the house was left unoccupied was sufficient to avoid the policy, according to its express terms, unless immediate notice were given. In the cases of Weston v. City Fire Insurance Company (15 Wis., 138) andHarrison v. Same Company (9 Allen, 231), which are relied upon as authorities in the Paine case, the clause was that the policy should become void if the occupant personally vacated the premises without giving immediate notice; and in the case ofKeith v. Quincy Mutual Fire Insurance Company (10 Allen, 228) the clause was that the policy should become void if the building remained unoccupied over thirty days without notice. In all these cases it was immaterial how the house came to be vacated or unoccupied. The fact alone was sufficient. But in the present case merely vacating the house or leaving it unoccupied was not declared in the policy to be sufficient to terminate the insurance. The condition was superadded that it must have been vacated by the removal of the owner or occupant. Some significance must be attached to these words, and we think that they refer to a permanent removal and entire abandonment of the house as a place of residence. So long as the occupant retained it as his place of abode, intending to return to it, and left his furniture and effects there, some degree of watchfulness and care on his part might reasonably be expected. He would continue to have an interest in its protection and preservation, and in common parlance he would not be said to have removed therefrom.

The absence of Albert Cummins and his wife, though for a considerable period, was temporary in its nature and for a special purpose. There was evidence that he still retained the house as his residence and left his furniture and clothing of his family there; that during this absence his wife took care of the house, going there every week to cleanse it, and from time to time to obtain articles required for immediate use and for other purposes, and that it was their intention to return as soon as the plaintiff had finished his canvassing trip. The statement in the proofs of loss as to the premises being vacant did not preclude the plaintiff from showing at the trial the circumstances under which the house had been vacated (55 N.Y., 229), and we think the court should have submitted to the jury, as requested, whether it had been vacated by the removal of the occupant therefrom.

The judgment should be reversed and a new trial ordered, costs to abide the event.

All concur.

Judgment reversed.