Kampen v. Farmers Mutual Fire Insurance

Bunn, J.

Defendant is a farmers mutual township fire insurance-company organized under Laws 1875, p. 106, c. 83, and tbe various amendments thereto relating to township insurance companies. On December 22, 1908, it issued to plaintiff its policy of insurance, insuring bis dwelling bouse and certain personal property therein. In May or June, 1910, tbe bouse and part of tbe personal property were destroyed by fire. This action was brought to recover on tbe policy. Tbe defense was that tbe bouse was vacant at tbe time of tbe fire, and bad been vacant for more tban ten days immediately preceding, in violation of a condition in defendant’s by-laws, set out in tbe policy, making void policies on dwelling bouses vacant fo¿ *70 more than ten days, until again occupied. The case was tried by the court, and a decision for plaintiff rendered. Defendant appealed from an order denying a new trial.

The facts in relation to the vacancy are these: The insured house was the home of plaintiff, in which he resided with his family. In the latter part of May, 1910, plaintiff and family made a visit to his parents in a distant part of the state, intending to remain for an undetermined length of time, but to return to his home on the conclusion of the visit. lie took with him such articles as he deemed that he and his family might require during their absence, but left his household goods and farming implements in the house, locked, and engaged a neighbor to look after it. The fire occurred more than ten days, but' less than thirty days, after he had departed on the visit. During this time no person had been in the house. The conclusion of the trial court based upon these facts was that the insurance policy was in full force and effect at the time of the loss. It is not clear whether the basis of this’ conclusion was that the ten-day vacancy provision in the by-laws was invalid, or that there had not been a “vacancy” for ten days. Both questions were argued in this court.

The validity of the by-law in controversy depends upon an answer to the question whether town insurance companies, organized under chapter 83, p. 106, Laws 1875, and the various acts amendatory thereof, are obliged to use the standard form of policy, which contains the provision that the policy shall be void if the insured premises become vacant by the removal of the owner, and so remain vacant for more than thirty days. This question has no difficulty, except as to policies issued by town insurance companies between the date of the adoption of the Revised Laws of 1905 and the passage of chapter 411, p. 490, Laws 1909, as both prior to the revision and since the 1909 law the statute has expressly excepted town companies from the laws relating to the use of the standard form. It is not, therefore, important to decide this question, utiIahs it is necessary to do so in order to decide this case.

The evidence clearly supports the findings of the trial court on the question of plaintiff’s absence from his house, his engaging a *71 neighbor to look after it, and his intention to return at the conclusion of his visit. It appears that all of the clothing of plaintiff and his family, except such as they wore on their visit, was left in the house, as were all the household goods and furniture. A horse and cow were left with one neighbor to care for, and another neighbor was asked to look after the corn and potatoes that plaintiff had planted. Do these facts prove that the house was “vacant” during the absence of plaintiff and his family, within the meaning of that term as used in insurance contracts ?

We hold that the house was not “vacant.” A mere temporary absence of the occupants, with the intention to return, when the premises are left in their usual condition, does not amount to a “vacancy.” 19 Cyc. 730; Cummins v. Agricultural, 67 N. Y. 260 , 23 Am. Rep. 111 ; Herrman v. Merchants, 81 N. Y. 184 , 37 Am. Rep. 488 ; Phoenix v. Tucker, 92 Ill. 64 , 34 Am. Rep. 106 ; Central Montana Mines Co. v. Fireman’s Fund Ins. Co., 92 Minn. 223 , 99 N. W. 1120 , 100 N. W. 3 .

The conclusion of the trial court that the policy was in force is sustained, on the ground that the findings and the evidence show that the insured house was not vacant, and it becomes unnecessary to determine the other question involved.

Order affirmed.

[Note] As to when is insured property vacant or unoccupied, see note in 2 Jj.R.A. (N.S.) 517.