137 Ill. 646 | Ill. | 1890
delivered the opinion of the Court:
It is to be premised that what is meant by the term “vacant' and unoccupied,” in a policy of insurance, is a question of law; but whether the building was, at the time of the loss, “vacant and unoccupied, ” within the meaning of the policy, is a question of fact. Phoenix Ins. Co. v. Tucker, 92 Ill. 64; Western Ins. Co. v. Mason, 5 Bradw. 141; Waite v. Agricultural Co. 13 Hun, 371.
On behalf of plaintiff the circuit court instructed the jury, “that the burden was upon the defendant to. show that the premises, at the time of the fire, were vacant and unoccupied, and unless such fact is shown by preponderance of the evidence they should find for the plaintiff upon that question; ” and also, “that although the plaintiff, in her application for insurance, represented that the premises were occupied by a tenant, and that such tenant moved out of the premises prior to the destruction of the building by fire, yet if they further believe, from the evidence, that at the time of such destruction, and after said tenant had moved out as aforesaid, the premises were occupied and used by the plaintiff as a dwelling house, then the jury must find for the plaintiff.”
On the part of the defendant company the court instructed the jury, “that it was the province of the court to construe the policy and determine its meaning, and that it was their duty to be governed by the instructions in respect thereof; ” second, “that by the policy in evidence, construed according to law, the defendant did not agree, and is not bound, to pay for any loss that might occur to the building while the same was vacant. or unoccupiedthird, “that occupancy, applied to houses insured as dwellings, implies an actual use of the house as a dwelling placeand fourth, “if you believe, from the evidence, • that the house in question was occupied by a tenant until on or about December 5, 1887, and that it was then vacated by ¡said tenant, and that since that time no one has lived in said. house as a place of abode, then the court instructs you, that under these circumstances the law is for the defendant, and it will be your duty to find a verdict in favor of the defendant.”
It is not contended that these instructions are not fully as favorable for the defendant as it had any right to ask. It is not necessary to determine whether, in view of this policy, they do not state the law too broadly in appellant’s favor, as no cross-errors were assigned. The last two of defendant’s instructions, as above copied, contain all that is material in those refused. It may be said with propriety, however, that provisions like the one under consideration, in a policy of insurance, are for the protection and benefit of the insurer, and are inserted in its interest, and therefore, when a forfeiture of the policy is sought because of a violation thereof, they are to be strictly construed,—that is, construed most strongly against the insurer. In other words, no.intendments will be indulged in favor of a forfeiture thereunder. (Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; Hoffman v. Ætna Ins. Co. 32 N. Y. 405; Raun v. Home Ins. Co. 59 id. 387.) We do not, however, deem it necessary to further pursue the discussion in this regard. The court below made the plaintiff’s right of recovery to depend upon the question of fact whether the building, at the time'of the loss, was actually occupied as a dwelling house or place of abode, and the jury have found that it was so occupied, and the Appellate Court has approved that finding.
The trial court submitted, at the instance of the defendant, special questions of fact to the jury, as follows:
1. “Did any person live in the house that was insured, at the time of the fire, and if not, find how long it had been since any one had lived in said house as a place of abode ?
2. “Was the house occupied in any manner, and if so, find and report, first, by whom it was occupied, and second, find the extent of occupation, and in what manner it was occupied, and how it ivas occupied.”
The jury returned, in addition to their general verdict, special findings. To the first question they answered “yesand to the second, “The house was occupied by Mrs. Elizabeth Storig; it was occupied permanently, to-wit, for -washing, ironing, cooking, eating and storage.” The jury having found that the house was occupied as a dwelling or as a place of abode, the affirmance of the judgment of the circuit court by the Appellate Court settles conclusively, so far as this court is-concerned, that fact. Paddon v. People’s Ins. Co. 107 Ill. 196.
Nor are we of opinion, without pausing to discuss the subject in extenso, that the special finding as to the manner of occupancy of the house is inconsistent with the general ver- ■ diet,—that is, that the occupancy so specially found is not. such occupation of the house as contemplated by the words, and terms of the policy. It was occupied by the plaintiff, the occupation was permanent, and for most of the purposes, as found by the jury, for which dwellings are used. We are aware that there is some conflict in the authorities upon this subject, but think that the weight of reason and authority concur in the view we have expressed.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
