Rockford Insurance v. Storig

Reeves, J. This is an action upon a fire insurance policy. The policy contained a clause that “ If the premises insured become vacant or unoccupied without the consent’of the secretary of the company in writing, the policy shall be void.” The contention of the appellant is, that at the time of the loss by fire, the premises insured were vacant and unoccupied. .Mrs. Storig and her husband owned-a building and outbuildings which they used as a saloon, eating house and residence, the saloon being located in the front part of the main building. In the rear of these buildings stood the building that was burned. It stood on a different lot from the one occupied by the saloon and eating house buildings. The two lots joined end to end, fronting on different streets. Both lots were in -the same inclosure. Mrs. Storig owned the lot on which stood the building that was burned, in her own right. At the time the policy was issued, the building was occupied by a Mrs. Harvey as the tenant of Mrs. Storig. The policy describes the property insured as “Dwelling-house Ho. 2, Oountv of Madison, State of Illinois, lot 26, Main street, town of Edwardsville.” In the application the property is described as “House Ho. 1, size 18x24 ft., age 3 years, occupied by a tenant,” without giving other description of the premises. Mrs. Harvey continued to occupy the premises as the tenant of Mrs. Storig until December 15, 1887. Mrs. Storig then, it seems, determined to use the building in connection with their other buildings. She took out the partition in the main part of the building,, put in stoves, tables, benches, chandeliers and chairs, with a view of using the building for the purpose of giving suppers to balls or parties held in Turner’s Hall, located just across the street. She also did the washing aud ironing of the household in this building and stored goods therein that Avere used in the saloon and eating house. The building Avas used on the day and evening of January 5, 1888, for serving a supper for a party held at Turner’s Hall; aud between the 5th and 12th day of January., thr day the building was burned, two washings and iron h:;; were done in the building. Mrs. Storig t'ésííítes ,j “ From the time we changed it the house was in use every day. I had'¡¡Alike a kitchen or general room. I fixed it up and put the stove's, in and used it every day. Every day went in two or three timéis and closed it up when we went away.” The company claims ihnc ao the building was described in the policy as a dwelling house, the vacancy clause must be construed to mean that when the building was not occupied as a dwelling house it was vacant or unoccupied within the meaning of this clause. In other words, that no other occupancy or use of the building would make it an occupied building in the sense required by the conditions of the policy. Provisions of this kind in policies of insurance, being in the nature of forfeitures, are to be strictly construed. Liberal intendments and enlarged constructions will not be indulged in favor of such forfeiture. Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213. The construction contended for by appellant must be conceded to be a very liberal interpretation. A strict construction would be, that if the property was left vacant and not occupied at all, in the sense in which the term occupancy is used, then the policy should be void. The policy does not in its terms require the occupation to have all the elements that usually attend the use of a building as a dwelling house. To inject this meaning into the language used, would be to enlarge the scope of a provision, in its operation working a forfeiture. In this case, under the evidence, it can not be fairly said that the building was vacant or unoccupied at the time of the fire. There was a daily use of the building and the use was in its nature the same in kind as the use of an ordinary dwelling—cooking, washing and ironing. The argument of appellant seems to be, that to constitute occupancy some one must have usually slept in the house, and it seems to be conceded if some one had usually slept in the building, this would have constituted occupancy. This provision was evidently inserted in the policy for the protection of appellant. It would seem that the occupation and use of the building "shown~by the testimony, would furnish much more complete'’ protection to appellant than would the occupancy offihe building by" some cue merely sleeping in it; going to"the house in the evening, sleeping'there, and leaving in..-the morning. The question of occupancy or non-opcnpancy of the building insured was a question of fact to- be decided by the jury under the instructions of the court as to the law applicable to the question. Western Ins. Co. v. Mason, 5 Ill. App. 141; Phoenix Ins. Co. v. Tucker, 92 Ill. 64. The jury were instructed on behalf of appellant as strongly on this point as could possibly be claimed the law warrants. The third and fourth instructions given for appellant state the law in language rather too broad. These two instructions contained all that was stated in the refused instructions which could, in our view of the law, be held unexceptionable. The special findings were not inconsistent with the general verdict. The judgment of the Circuit Court is affirmed. Judgment affirmed.