Doud v. Citizens' Ins.

141 Pa. 47 | Pa. | 1891

Opinion,

Mr. Justice Green:

On the trial of this case, the plaintiff testified that she went to the house in question on Wednesday, the day before the fire; that she had received no notice from her tenant, Mrs. Berheight, that she intended to leave the house, and that she, the plaintiff, had no knowledge until that day that the tenant had left. She was corroborated in this statement as to her going to the house on that Wednesday by the witness Mrs. Brown, and there was no testimony in the case contradicting either the plaintiff or Mrs. Brown on this subject. Both of these witnesses also testified that there were several articles of furniture belonging to the plaintiff in the house at that time, and that the plaintiff was engaged and remained in the house all day, until 6 o’clock in the evening. Although Mrs. Berheight at first said that it was about a week after she moved before Mrs. Doud came over to the house, she was unable to fix the time definitely, either when she finished moving, or on what day it was she saw Mrs. Doud at the house. She said she would not be precise as to a day or two; she was sure she moved early in the week, and thought it was Friday when Mrs. Doud came over; but she was clearly wrong in this, as the fire occurred during the night of Thursday. She said it was either Monday or Tuesday that she moved, and that it took her one or two days to finish moving. But Mrs. Brown testified that Mrs. Berheight moved the last of her things out two days before the fire, and that Mrs. Doud came to the house on the day before the fire; so that, if her testimony was correct, Mrs. Doud came to the house the next day after Mrs. Berheight left, and remained all day.

This being the state of the admitted testimony, Mrs. Doud offered to prove that she went to the village where the house was, desiring to get possession of part of the building for herself and an invalid son; that, upon learning that Mrs. Berheight was moving out, she went to her home in Dunmore, and immediately packed such household and personal articles as she needed, with the intention of moving into the house on Friday morning; and that she had her things packed on Thursday, ready to move on Friday, but was prevented from doing so by the fire. This offer of proof was rejected. Another offer was then made covering substantially the same facts, and also that she had been advised by her physician to take her invalid son to the village of Drinker, where the house was; and, further, that she had placed a man in charge of the house on Wednesday, to remain until Friday. This offer also was rejected. She also made a similar offer of proof by her daughter, that she was engaged all day Thursday in picking up and packing household articles preparatory to the moving on Friday. This offer also was rejected. The question that arises is, whether, under all the facts proved and offered to be proved, there was such a vacation of the premises as avoided the policy under the sixth clause thereof. The language of the clause is as follows:

“ 6. This policy will not cover unoccupied buildings, unless insured as such, and if the premises insured shall be vacated, without the consent of the company indorsed hereon, .... the policy shall cease and determine.”

It is argued for the appellee that the case of McClure v. Insurance Co., 90 Pa. 277, decides the question adversely to the appellant. Upon examining that case, ho wever, it will be found that there is a marked difference in its facts from those of the present case. There, an absolute vacation of the premises bad taken place, in the very manner prohibited by the contract, by the “ removal of the occupant,” and there was no substitution of another occupant, either as tenant or owner, actually proceeding when the fire occurred. The very contingency which in express terms avoided the policy had occurred. The vacation of the premises was complete, and had been for several days ; the owner did not occupy, or propose or intend to occupy the house himself, and no new tenant had been obtained or was even being negotiated with. There was nothing but an intention and an effort of the owner to engage a new tenant. Nothing had been accomplished, however, in that direction, when the fire took place. We held that it was the duty of the insured, in those circumstances, to obtain the consent of the company to the vacancy, and, as no effort of that kind was made, the literal terms of the policy prevailed, and it was avoided.

But in the present case the facts were entirely different. The owner had several articles of furniture in the building, and a few of those of the departed tenant had not yet been removed. The owner immediately took possession of the house on the day before the fire, remaining until evening, having first sent for and obtained the key from the departing tenant. She also immediately announced her purpose of occupying the house as soon as she could get her household goods removed, and at once commenced and continued through the whole of Thursday the preparation of her goods for removal on the next day, Friday. Moreover, she offered to prove, but was not permitted to do so, that she placed a man in charge of the house on Wednesday to remain until Friday. In such circumstances as these, we do not consider that there was any vacation of the premises, or any more of a cessation of occupancy than would necessarily arise upon a change of tenants. A reasonable time must necessarily be allowed to carry out such a change without imposing upon the insured the penalty of either an intended or a permitted vacation of the premises. There was no intended vacation here, in any view of the facts, and there was no real cessation of occupancy. The occupancy of the owner on Wednesdajr was part of a continuing occupancy, to be proceeded with on Friday, and only delayed by the absolute necessity of obtaining and removing the owner’s goods from her home, seven miles distant. Her absence from the building was only for a temporary purpose, which was unavoidable, but which was in no sense an abandonment of occupancy.

In this respect the case is entirely analogous with the case of Franklin Ins. Co. v. Kepler, 95 Pa. 492, where we held that the absence of the insured from his dwelling from Wednesday until Monday, to attend a funeral, was not a breach of the condition of his policy almost identical with that of the present policy. The same principle was enforced in Lebanon Ins. Co. v. Leathers, 20 W. N. 107, where there was a cessation of the operations oí a tannery for three months, and a condition of avoidance if the property should cease to be operated as a tannery. We held that “amere temporary suspension of the business of the establishment for the purpose of making repairs, or from want of a supply of materials, is clearly not ceasing to operate the establishment, within the meaning of the policy.” In the case of Ins. Co. of N. A. v. Hannum, reported in 1 Mona. 369, but not reported elsewhere, with the same condition as to vacancy as in this case, the tenant moved out on April 1st, at the expiration of his term, and the premises were rented to another. tenant for a term commencing at that date, but the new tenant did not move in at once, but made his arrangements to move in on April 5th. The house was burnt on April 8d. The court below ruled that “the period of time during which the house was not occupied, or rather the condition in which it was during those two days, was not such a cessation of the occupancy contemplated by the policy, for such a length of time, as would vitiate the policy.” This court affirmed the judgment for the plaintiff without hearing the defendant in error.

We are clearly of opinion that there was no breach of the condition of this policy prohibiting the vacation of the premises. We sustain the first, second, fifth and sixth assignments of error. As we hold that there was no breach of condition arising upon the facts of the case, it is not necessary to consider the question whether there was a waiver of the condition in question. The rejected offers of testimony should all have been received except the one covered by the fourth assignment, which was a mere general offer, without any specific facts stated.

Judgment reversed, and venire de novo awarded.