Franklin Fire Insurance v. Kepler

A policy of fire insurance provided that it would not cover unoccupied buildings, and if the premises insured should be vacated without the consent of the company endorsed on the policy the latter should cease and determine. An insured was absent from -his dwelling from Wednesday until Monday, to attend a funeral, during which time there was no occupant of the house: Held, that such a temporary absence was not a breach of the policy.

Error to the Court of Common Pleas of Forest county: Of October and November Term 1880, No. 56. Assumpsit by Jacob M. Kepler against The Franklin Fire Insurance Company, on a policy of fire insurance, to recover for a loss. The 15th section of the policy provided: “ This policy will not cover unoccupied buildings (unless insured as such), and if the premises insured shall be vacated without the consent of the company endorsed hereon, * * * this policy shall cease and determine.” The property insured was destroyed by fire. The evidence showed that this fire occurred on Sunday morning, October 27th 1878. Plaintiff testified that on Wednesday preceding that day he went to Clearfield county; that he received a telegram notifying him of the death of a friend, and he left for tile purpose of attending the funeral, and returned on Monday, following the fire. Kepler himself was the only occupant of the house. He testified that he made it his home and residence, and that he had no other home or residence at the time. It was claimed on the part of the company,, that this absence, with no one in the house during the time was a violation of the 15th clause of the policy, and that it was substantially an unoccupied building. The following were among the points of the defendant:— 1. The undisputed facts being that at the time the plaintiff’s dwelling-house was destroyed by fire, no one was living in it and no one had been living in it for four days prior to that time, and no notice of that fact having been given to the defendant and its consent obtained to such non-occupancy, the house was vacant within the meaning of the contract between the parties, as contained in the policy on which this suit is brought, and there can be no recovery. 2. The occupancy of a dwelling-house consists in living in it, and if the plaintiff' absented himself from the said house from Wednesday prior to the fire, and was still absent when the fire occurred, which was Sunday morning, during, which time no one occupied the house, it constituted such a vacation as was contemplated in the contract between the parties, and the verdict should be for the defendant. 3. The existence of an intention in the mind of the plaintiff to return and resume the occupancy of the house under the circumstances, makes no difference in determining the question of vacancy. The court answered these points in the general charge, as follows :— “We. say to you, that if the plaintiff left upon an emergency for the purpose of attending a funeral, and he was absent for that purpose, and when he had accomplished the purpose for which he left, he returned on the Monday following the fire, then the absence under these circumstances is not a breach of clause 15th of the policy; that it was not an unoccupied "building within the purpose and meaning of that clause of the policy.” Verdict for plaintiff, and after judgment thereon, defendant took this AYrit and alleged that the court erred in the portion of the charge noted.