Alston v. Old North State Insurance

Smith, C. J. (After stating the ease.) In this ruling -we eoncur. It is made an essential condition of the contract that the property should not be exposed to the perils of an unoccupied tenement without the fact being communicated to the insurer and the consent of the company obtained and endorsed by an entry on the policy. This is a just and reasonable precaution against an increased risk without an increased premium, and a substantial and important ele *328 ment of the contract. The danger to unoccupied buildings is certainly greater in the absence of any one to protect them, or to extinguish the fire at the beginning or to detect and punish the incendiary ; and this is quite manifest from the facts of the present case. It may be that the at-, tempt would not have been made if a vigilant and careful-person had been present, interested in the preservation of his own property as well, or if made, would not have been successful. And if this was not so, it is an essential condition of the insurance that if the premises become vacant, the consent of the company must be obtained in the manner specified, or the policy become void. By this condition the plaintiffs must abide, and the consequences of their neglect must rest upon themselves. The proposition seems to be too plain for discussion. “ If in the description,” says Mr. May, “ the recital is that the property insured is only to be used or occupied in a certain way, or not to be used or occupied at all, this is an agreement and must be complied with; and so it is if the policy provides that unoccupied buildings must be insured .as such, and in case the building becomes vacant, the assured shall give notice or forfeit his right to recover.” May on Insurance, § 248. We do not put so vigorous a construction upon this-provision of the contract as to require that immediate information of the vacancy be conveyed to the insuring company, but if it is to be held liable after this change in the condition of the insured premises, such notice should be given in a reasonable time thereafter, and the assent of the company to the continuance of the policy obtained and manifested in the mode specified. This was not done for more than six weeks preceding the fire, although the defendant's principal place of business was but a few miles distant, and the delay is inexcusable. Nor do we mean to say that such temporary interruption in a continuous possession as is.incidental *329 to a change of tenants would without such notice and consent vitiate the policy and discharge the insurer from its obligations. But this is not a case of the kind. The vacancy has lasted as we have said for more than six weeks and might have been protracted for months, so far as we can see, but for the destruction of the buildings. We have considered the case as presenting the question of the effect upon the plaintiffs’ rights of their failure to give the required notice, which as we understand the case was intended to be presented on the appeal for our determination; and we have not considered the technical criticisms upon it, made in the argument of the plaintiffs’ counsel. We therefore declare there is no error, and the judgment must be affirmed. No error. Affirmed.