Western Assurance Co. v. McPike

62 Miss. 740 | Miss. | 1885

Arnold, J.,

delivered the opinion of the court.

The building embraced in the policy sued on was described and insured as a family residence, occupied by a tenant. There were stipulations in the policy that if the premises should be used or occupied so as to increase the risk, or if they should become unoccupied and so remain for thirty days without the assent of the insurer indorsed on the policy, the policy should become void. The testimony shows that without the knowledge or assent of the insurer the building was unoccupied as a family residence for more than thirty days before it was burned. The owner of the property, who had possession of the policy, resided in Missouri. His agent, who insured the house in December, 1881, and lived in it at the time, moved with his family seventy-five or eighty miles from the place in January or February, 1882, and had not returned or seen the premises from that time until the house was burned in September, 1882, and knew but little, if anything, of what was going on about the place and exercised no supervision over it, and had no knowledge of the house being burned until he was informed of it nearly two months after the fire by a person whom he met on a steamboat on the Mississippi River. When the agent moved with his family he left his brother and his family in the house, and afterward his brother and family moved, and the building was converted into a retail liquor house by a man who had no family, and no authority, it seems, from the owner of the property or any of his agents to occupy the premises, and was paying no rent for the same. While thus occupied, the house was destroyed by fire. The court refused to instruct the jury for the appellant, that if they “ believe from the evidence that the building became vacant or unoccupied for thirty days at any time during the continuance of the policy, without the consent of the company indorsed on the policy, they must find for the defendant, and the building was, in the sense contemplated by the policy, vacant, though some one were left to take care of it, if, in fact, it were not occupied as a family residence.”

It was error to refuse this instruction. By the terms of the policy the building was to be used and occupied as a family residence. The insurer had a right under the policy to the care and supervision involved in the use and occupancy of the building as a family residence. Ashworth v. Builders’, etc,., Ins. Co., 112 Mass. 423; Paine v. Ins. Co., 5 N. Y. Sup. Ct. 619. In such case a practical occupancy, consistent with the purposes for which the building was insured, is intended, and an occupancy that measurably lessens the vigilance and care that would be incident to its use for such purpose is not an occupancy within the meaning of the terms of such policy. Wood on Fire Ins. 180, 181.

It is manifest from the record that the house was virtually abandoned by the assured and his agents, and that the risk was increased by the manner in which the premises were used and occupied. We are of opinion, not only that the instruction above quoted should have been given, but that the court should have instructed the jury, as requested, to find for the appellant.

Reversed.