198 S.W. 632 | Tex. App. | 1917
The plaintiff in error insists that under the undisputed facts there was no such occupancy of the dwelling as the policy contemplated, and that the court should have directed a verdict for the defendant as requested. It is believed that the court should have directed a verdict for the defendant on this issue, and that the plaintiff in error's insistence of error should be sustained. The precise facts of this case are that the tenant and his family, occupying the dwelling as a residence on October 5th, went to another place six miles distant to pick cotton, expecting to return on the Saturday within the week, but were prevented by bad weather and the condition of the road from returning before the building was destroyed by fire on November 30th. The household goods remained in the dwelling. And the special clause in the policy on which the defense is based is:
"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."
It becomes necessary, therefore, to determine when, in legal contemplation, the dwelling may be said to have been "vacant or unoccupied" within the meaning of these words as used in the policy. The word "vacant" is not synonymous with "unoccupied." 2 Cooley on Insurance, p. 1663. And as the words "vacant" and "unoccupied" are used in the clause of the policy disjunctively, it is not incumbent on the defendant, in order to sustain the defense, to show that both conditions existed for 10 days before the fire. "Vacant" means without inanimate objects, and "unoccupied" means without animate objects. Herrman v. Insurance Co., *634
Consequently, as within the meaning of the word "vacant" as contemplated by the policy, the insured dwelling may not be regarded as vacant, for, in point of fact, the household effects were in the dwelling, and were articles of a character adapted to the use and purpose of a dwelling. But the personal absence of the occupants of the dwelling would, within the meaning of the words "or unoccupied" as used in the policy, be an act rendering the dwelling unoccupied for the time by them. And it is believed that the temporary absence of the occupants, as proven, would not fulfill the condition of the stipulation, for, according to the terms of the clause, the dwelling may remain "unoccupied" only for the period of 10 days without forfeiture of the policy, unless nonoccupancy be consented to by the insurance company. Thus, by the terms of the clause, the occupants of the dwelling may be temporarily absent from the dwelling for a period of 10 days or less, and such absence would not be an act rendering the dwelling "unoccupied" so as to work a forfeiture during said time of absence. But the parties, when they entered into the contract of insurance, did not, according to the special clause as to occupancy, contemplate nor provide that the dwelling should be treated as "occupied" if the occupants remained absent from the dwelling for more than ten days unless consented to by the insurance company The courts cannot change or ignore the agreement of parties, but must construe their agreement as it is found. The case of Insurance Co. v. Evants,
But the breach of the condition of the clause considered would not necessarily require a judgment for the defendant if the evidence warranted a finding of fact that there was a waiver, as pleaded, on the part of the insurance company of forfeiture by reason of nonoccupancy in the facts. It is believed the facts made this issue in the case. Insurance Co. v. Evants,
Since the judgment for loss of the dwelling cannot be sustained on the said finding of fact of the jury, and the parties are entitled to have a jury finding on the issue of waiver, the judgment is reversed and the cause remanded for trial on the whole case.
