American Central Insurance v. Clarey

Lacey, P. J. The court before which the cause, was tried gave judgment against the appellant for the amount of the insurance, and to reverse that judgment this appeal is taken. The only cause insisted on for reversal is the refusal of the court to give the above proposition of law asked for by the appellant. Whether or not the court erred in such action depends upon the construction to be given to the clause in the insurance policy in regard to the policy being void in case the house should become vacant. The clause under consideration.reads as follows: “ This policy shall be null and void if the premises shall be used or occupied so as to increase the risk, or be or become vacant or unoccupied, or cease to be used or occupied for the purposes herein, or if it be a manufacturing establishment and shall run in whole or in part at night or over extra time, or if it shall cease to be operated, or the risk be increased by the erection or occupation of neighboring buildings, or by any means within the knowledge or control of the assured.” As we understand it, the proper interpretation to be given to the above provision of the policy is that the last clause refers back to and modifies the preceding clauses, and in doing so, modifies the clause regarding the vacancy. Therefore it should be construed to read: “The policy shall become void if the house shall become vacant by any means within the knowledge or control of the assured to prevent.” That is, if he could prevent it and did not, the policy should become void. It is evident, therefore, that the assured, not having any knowledge of the vacation of the house by the tenant, and it being vacant so short a time before the fire that he could not discover the fact and place a tenant -therein, he should not be held to laches in regard to the vacancy. The proposition of law was therefore properly refused and the court committed no error in doing so. A similar provision in an insurance policy has been construed as we interpret this, in N. A. F. Ins. Co. v. Ziegler, 63 Ill. 465. The policy construed in N. F. Ins. Co. v. Drda, 19 Ill. App. 70, is not set out in the opinion, and we can not say whether it is the same as the one in this case or not; but, however that may be, this court must be governed by the decisions of the Supreme Court. This being the only question involved in this ease and being decided adversely to the appellant, the judgment of the court below is affirmed. Judgment affirmed.