Beecher v. Vermont Mutual Fire Insurance

Powers, J. The policy carried by this plaintiff in the defendant company contained a provision that it should be void if the property covered should be unoccupied for a period of ten days without the consent of the company. A fire having occurred, this suit was brought upon the policy, and the company here defends on the ground of a violation of this provision. The policy ran for five years from its date, and on various occasions before the fire the buildings were unoccupied for the specified period, though they were occupied by the assured at the time of the fire. The ease as presented presupposes the validity of this condition in the circumstances shown; but in our view the question of its validity is of vital importance. Some of the cases like Hoover v. Ins. Co., 93 Mo. App. 111, 69 S. W. 42; Moore v. Phoenix Ins. Co., 64 N. H. 140, 6 Atl. 27, 10 Am. St. Rep. 384, Id., 62 N. H. 240, 13 Am. St. Rep. 556; Dolliver v. Granite State Fire Ins. Co., 111 Me. 275, 89 Atl. 8, 50 L. R. A. (N. S.) 1106, Ann. Cas. 1916 C, 765, rigorously adhere to a literal interpretation of such provisions, and deny a recovery though the premises are reoccupied before the fire occurs. But we do not hesitate to align ourselves with Ins. Co. of No. Am. v. Garland, 108 Ill. 220; Silver v. London Ass’n Corp., 61 Wash. 593, 112 Pac. 666; Ins. Co. of No. Am. v. Pitts, 88 Miss. 587, 41 So. 5, 7 L. R. A. (N. S.) 627, 117 Am. St. Rep. 756, 9 Ann. Cas. 54; Born v. Home Ins. Co., 110 Iowa 379, 81 N. W. 676, 90 Am. St. Rep. 300; and Sumter Tobacco Warehouse Co. v. Phoenix Ins. Co., 76 S. C. 76, 56 S. E. 654, 10 L. R. A. (N. S.) 736, 121 Am. St. Rep. 941, 11 Ann. Cas. 780, by holding that this provision, rightly construed, merely suspends the insurance during the unoccupancy, and that the policy is revived by a reoccupaney before the fire. Such a construction accords with the real purpose of the provision, and harmonizes with the doctrines of this Court in kindred cases. To hold otherwise is to give the company an unconscionable advantage over its patrons, by allowing it to retain the full premium, a part of which is unearned, and enabling it to take advantage of an unsuspected forfeiture through an innocent violation of one of the numerous conditions inserted in the policy, though it be a most trivial matter and wholly unconnected with the fire. We cannot believe that the company seriously expected such a result, when the language of the policy was selected. Certainly, [349] it would be well-nigh impossible to keep within the literal terms of the policy under present day living conditions. Judgment affirmed.