Hartshorne v. Agricultural Insurance

The opinion of the court was delivered by The Chancellor.

The plaintiff now insists, first, that the question of occupancy of the dwelling-house should have been left to the jury; second, that the contract of insurance' was so divisible that the validity of the policy, so far as the-insurance of the out-buildings was concerned, did not depend upon the occupancy of the dwelling-house; and third, that the evidence which he offered, to show different rates of premium charged for the insurance of the several buildings, should have been admitted.

The justice at the Circuit did not err in taking the question, as to the occupancy of the dwelling-house from the jury. There was no question as to what the proofs established. The only inquiry was whether the proven facts established such an occupation as the condition of the policy contemplated. That proposition, properly, was solved by the court.

That the court was correct in its solution of it there can be no doubt. The policy provided that if the dwelling-housn should cease to be occupied as a dwelling, then, so long as it. should be unoccupied, the contract of insurance would be-void.

The word unoccupied,” as used in contracts of this kind, has received -judicial construction in this court, in the case of Sonneborn v. Insurance Company, 15 Vroom 220 . Judge *430 Oreen, who delivered the opinion of the court, there said that such word is always to be construed with reference to the nature and character of the building, the purposes for which it is designed, and the uses contemplated by the parties, as expressed in the contract; and that a dwelling-house, being designed as the abode of mankind, is occupied when human beings habitually reside in it, and unoccupied when no one lives or dwells in it.

In that case the assured sent a servant to live with his family in a portion of a summer residence. On March the ‘22d, the servant assumed general charge of the place, working in the yard and garden, taking care of the stock in the barn, and occasionally going through the dwelling-house. In consequence of the sickness of his wife, he did not live in the dwelling-house, as it was intended he should, but temporarily boarded at a neighbor’s, about a quarter of a mile away. He .slept and had breakfast and supper at his boarding place, and when he went to work carried his dinner with him and ate it upon his master’s premises. On April 19th, the dwelling, with the furniture in it, was burned. On the same day the servant’s wife and children arrived, prepared to commence residence in the building that had been destroyed. The court held that the supervision of the premises by the servant, and his continuous work upon them, fell short of that which is necessary to constitute an occupancy of the dwelling.

The case under consideration is, in many respects, weaker than Sonneborn v. Ins. Co. There, the house was furnished, while here, it contained a single bed. There, a trusted employee, throughout the day, worked upon the place, caring for the assured’s stock in the barn and frequently examining as to the condition and welfare of the house; while here, an abandoning tenant occasionally looked .after that which he had left in the out-houses. There, occupation was temporarily deferred until the arrival of the watchman’s family; while here, a feeble, nominal occupation was abandoned because the cold rendered the trouble and expense of a fire necessary. There, it was obviously the pur *431 pose to amply protect the property; while here, the watchman was indifferent to any fate that might await it.

When one lives and dwells in a house, it is the customary place of his abode, not of necessity absolutely and uninterruptedly continuous, but the place of his usual return and habitual stoppage.

It was not pretended that any one thus lived in the house of Mr. Hartshorne, but, on the contrary, it cannot be questioned that the house was not thus occupied.

I think that the trial justice was correct in his deter minaiion of this question.

In consideration of the second proposition, I have concluded ■that it is not necessary to go exhaustively into the question whether the policy before us may be regarded as several contracts for the insurance of distinct parcels of property enumerated in one document. So far as the condition in question is •concerned, I think it may not be so regarded. By the literal reading of the condition which is relied upon as a defence to the plaintiff’s suit, it is apparent that it applies to all the subjects of the insurance, and brings them all within its force and effect; and from the nature of the contract, whether it be divisible or not, we are constrained to infer that the éxistence of the condition had a potent influence in securing the assumption •of the entire risk, for it is a matter of common knowledge that ■a farm, with its dwelling and out-buildings, constitutes a single establishment, generally remote from other habitations, and that the protection of the whole must, in a great measure, depend upon the occupants of the dwelling. Almost without exception the out-buildings of a farm are clustered about a place of abode, and for that reason are deemed to be more secure than the occasional out-lying barn or crib, which, because of its isolation, becomes the bane of its apprehensive owner. It seems to be impossible not to assume, in this case, that the proximity of the out-buildings to the dwelling, influenced the insurer to enter into its contract or contracts under the protection of the condition here questioned. It is natural and reasonable that it should be held to have intended *432 that the continuance of the insurance upon all the subjects thereof was to depend upon the occupation of the dwelling. I fail to perceive anything, either in the language of the condition or in its reasonable application, that should lead to the determination that compliance with its terms was not requisite to the validity of the policy as to each item of property insured.

It follows, from this view of the force of the condition in question, that the exclusion of the evidence that was offered for the purpose of establishing the divisibility of the insurance did not work injury to the plaintiff, and that therefore it is not necessary to pass upon its competency.

The judgment of the Circuit Court should be affirmed.

For affirmance — The Chancellor, Chief Justice, Depue, Dixon, Knapp, Magie, Reed, Yan Syckel, Brown, Clement, Cole, McGregor, Paterson, Whitaker. 14. For reversal — None.