161 Ill. 437 | Ill. | 1896
delivered the opinion of the court:
Whether a building is vacant or unoccupied at the time a loss by fire occurs is a question of fact, for determination by the jury. What is meant by the term “vacant or unoccupied,” as used in a policy, and its construction with other clauses, is a question of .law. (Phœnix Ins. Co. v. Tucker, 92 Ill. 64.) The question of fact, depending on the preponderance of the evidence, is for the jury. Whether there is any evidence, legally tending to prove a fact, to authorize its submission to the jury, is to be determined by the court. (Bartelott v. International Bank, 119 Ill. 259.) Where the evidence is not sufficient to support a verdict for the plaintiff, or if one, if found, must be set aside, the court may direct the finding. Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340.
An insurance policy will be liberally construed in favor of the assured, but construction will not make a new contract for the parties or disregard the evidence as expressed. The covenant, in this policy that the premises becoming vacant and unoccupied would cause a forfeiture and avoidance, can on no principle of construction be made to depend upon the plaintiff’s knowledge of the fact. In Moore v. Phœnix Ins. Co. 64 N. H. 140, it was held that a dwelling house in which no one lives, but in which a former occupant left some trifling articles of furniture of little value and of no use elsewhere, was vacant and unoccupied, within the meaning of the terms of the policy. To the same effect are Continental Ins. Co. v. Kyle, 9 L. R. A. (Ind.) 81, and Fischer v. Council Bluffs Ins. Co. 74 Iowa, 676.
There is a strong authority in support of the rule that the meaning of the term “vacant or unoccupied” is that the house is without an occupant—that is, no one living in it. North American Fire Ins. Co. v. Zaenger, 63 Ill. 464; American Ins. Co. v. Padfield, 78 id. 167; Fitzgerald v. Connecticut Fire Ins. Co. 64 Wis. 463; Alston v. Old North State Ins. Co. 80 N. C. 326.
The evidence in this record already shows the premises were vacant and unoccupied, within the meaning of the conditions of the policy, and by the terms of the contract a forfeiture and avoidance resulted from that fact.
It was not error to instruct" the jury to find for the defendant, and it was not error in the Appellate Court to affirm that judgment. The judgment of the Appellate Court is affirmed.
Judgment affirmed.
