McClure v. Watertown Fire Insurance Co. of New York

Mr. Justice Gordon delivered the opinion of the court, William H. McClure, the plaintiff below, accepted the policy which is the subject of the present contention, subject to the express condition that it should be null and void, “if without the written consent of the company first had and obtained, the dwelling-house or houses hereby insured, become vacant by the removal of the owner or occupant, or cease to be occupied in the usual and ordinary manner that dwelling-houses are occupied.” This provision became part of the contract of insurance; the company agreed to insure the premises at a certain rate, and the plaintiff, in consideration thereof, on his part, agreed, that the property should be occupied either by himself or his tenants during the running of the policy, and if at any time it became vacant, then, and in that case, this policy should be of no further force or effect. As this condition is unambiguous and reasonable, and as the plaintiff voluntarily accepted it, prima facie it would seem to be obligatory. What reason, then, has the plaintiff to give why it should not be so ? The property certainly became vacant without the assent of the company first being had and obtained, and during that vacancy it was burned. [280] Now, in the case of the- Birmingham Eire Insurance Co. v. Kroeger, 2 Norris 64, this court held, that a provision, in the policy, providing against the use of carbon oil in and about the insured building, was good and binding upon the insured, and this notwithstanding the knowledge of the company’s agent, at the time of insurance, that carbon oil was kept upon the premises. It is therefore certain that provisions, of the character of that now under discussion, are obligatory, and that their violation will avoid a policy of insurance. It will be observed that the case cited and the one in hand are similar, excepting, only the objects embraced by the conditions. In the one case, there was a prohibition of the use of carbon oil upon the premises, in the other, a prohibition of the vacancy of the insured building; but on both, confessedly, the non-observance of the conditions increased the risk. Why, then, should the ruling of the one not apply to the other ? It is urged that the plaintiff’s tenant left the premises without his knowledge and consent, and that, as soon as he discovered that fact he endeavored to procure a new one. All this may be admitted as true, but then, who was to bear the risk in the meantime? Not the company, for it had expressly provided that it would assume no such risk. What then mattered the good intentions of the plaintiff? The fact remained that the loss occurred during the vacancy of the property. Had McClure taken the pains to have notified the company of the vacation of the building, and obtained its assent thereto, he would have saved his policy; he did not choose so to do, and hence relieved the defendant of its responsibility. It but comes to this, the plaintiff did not live up to his contract, and so lost the advantages of it. It is true, as is said in the Western Insurance Co. v. Cropper, 8 Casey 351, that the stipulations in a policy are intended for the benefit of the underwriters, and where they are obscure, they must be interpreted most favorably to the assured; but, on the other hand, to refuse their enforcement when they are not obscure, w’ould be a denial of justice. Then again, it is not quite correct to say that such stipulations operate wholly to the advantage of the underwriters, since, in consequence thereof, the assured obtains his policy at lower rates than would be the case were that policy unconditional. Our attention has been directed to the case of Gamwell v. The Merchants’ and Farmers’ Mutual Fire Insurance Co., 12 Cush. 167; but it is not in point. The defence there was, not upon any condition in the policy, but upon an alleged increase of risk, occasioned by the vacation of the insured building, and, also, upon the further allegation that the loss occurred through the culpable negligence of the assured. These were, of course, questions for a jury, and involved, among other things, the good faith of the plaintiff in his alleged endeavors to procure a new tenant as soon [281] possible after the vacancy had occurred. Such, however, is not the question which we have now to consider; it is not whether the risk was increased, or whether the plaintiff acted in good faith, but whether he complied with the condition which he had adopted by accepting the policy. The ruling of the court below is supported by the case of Harrison v. The City Insurance Co., 9 Allen 231, in which it was held that where the policy contained a condition similar to that now under consideration, the company was relieved from responsibility where the loss occurred during the vacancy of the insured premises. Substantially the same ruling may be found in Keith v. The Quincy Fire Insurance Co., 10 Allen 228, and in Corrigan v. The Connecticut Fire Insurance Co., 122 Mass. 298. The conclusion at'which the court below arrived, being thus abundantly supported by reason and authority, must be affirmed. Judgment affirmed.