38 Neb. 146 | Neb. | 1893
This is an action upon a fire insurance policy issued by the plaintiff in error upon the same building covered by the policy sued on in the case of German-American Insurance Co. v. Buckstaff, 38 Neb., 135, decided herewith. The stipulations in the policies are substantially alike, and the issues presented by the pleadings in the two cases are the same. By agreement of parties this cause was submitted to the trial court on the evidence taken in that suit. There was judgment for plaintiff in the sum of $1,694.82.
What is said in the opinion in the case above referred to bearing upon the charge of the court does not apply to the case before us, nor will a cause tried to the court be reversed for the admission of incompetent testimony. (Enyeart v. Davis, 17 Neb., 228; Willard v. Foster, 24 Neb., 213.)
It is claimed that the building was vacant and unoccupied without the consent of the company. The proof shows that when the policy was written, and from thence until about the time of the loss, the building was occupied and used as a hotel by one William Splain, a tenant of the plaintiff. The hotel was closed to the public on October 20th, and the tenant moved out on that day or the following, and the building thereby became unoccupied, except a portion of the furniture and other personal property remained therein at the time of the fire, which occurred on the night of October 21st. As to just what amount of property was in the building when it burned the evidence is conflicting. That introduced by the plaintiff tends to prove that a considerable portion yet remained, while there is other evidence
Is the company relieved from liability for the loss by reason of the condition in the policy declaring the policy void if the insured premises, during the term of the insurance, should become vacant or unoccupied without notice to, and consent of, the company in writing?
In Springfield Fire & Marine Ins. Co. v. McLimans, 28 Neb., 846, it was held that a temporary vacancy of a building will not defeat a recovery upon a policy. And there can be no doubt, both upon reason and authority, that such is the rule. Some of the authorities hold that the vacancy of a building during the time necessary for the changing of tenants of the assured will be fatal under the ordinary terms and conditions in afire insurance policy.’ But we are unwilling to go that far. It seems to the writer that such a temporary vacancy was a contingency contemplated by the parties, and against which the provision was not intended to apply. Many recent authorities so hold.
In Hotchkiss v. Phœnix Insurance Co., 76 Wis., 269, Lyon, J., in construing the term “ vacant or unoccupied ” in an insurance policy, observes: “Under certain circumstances
The following sustain the above doctrine: Traders Ins. Co. v. Race, 29 N. E. Rep. [Ill.], 846; Home Ins. Co. v. Wood, 47 Kan., 521; Doud v. Citizens Ins. Co., 21 Atl. Rep., 505 ; Roe v. Dwelling House Ins. Co., 23 Atl., Rep. [Pa.], 718; American Central Ins. Co. v. Clarey, 28 Ill. App., 195; City Planing & Shingle Mill Co. v. Merchants, Manufacturers & Citizens Mutual Ins. Co., 40 N. W. Rep. [Mich.], 777.
We are satisfied that the trial court was justified in finding that the premises were not “vacant and unoccupied” within the meaning of that term in the policy. The judgment is
Affirmed.