When Premises are Not Vacant and Unoccupied.

65.- Policy contained condition that 70.- Where policy insures a building it should be void if the premises should "while occupied as a country store and become vacant and unoccupied." The dwelling," and containing a clause that dwelling insured was the summer resi- it should be void in case the latter bedence of the assured. Fire occurred in came vacant and unoccupied for more April, 1877. Assured resided in the house than ten days without notice to the comduring summer and fall of 1876, and re- pany, etc., there is no forfeiture if the moved therefrom in November of that building ceases to be occupied as a dwelyear to the city of New York, intend-ling only; it must not be occupied at all ing to return about the middle of May. to have such effect. Burlington Ins. Co. He left all his furniture in the house, v. Brockway, 39 Ill. App. 43; 28 N. East. which was furnished throughout, and Rep. 799. left the house in charge of a person who lived near. Held, that house must not only be unoccupied, but also vacant to render it void; and that it was not vacant within meaning of the policy. Herrman v. Merchants' Ins. Co., 81 N. Y. 184.

Temporary Vacancy.

family residence, it continuing to be occupied by one person who had access to the entire building for the purpose of caring for it. Imperial F. Ins. Co. v. Kiernan, 83 Ky. 468.

72. A cotton mill building is not vacant and unoccupied within a policy, where a number of employees are retained in the service of lessee, and are actually engaged about their usual work in the mill up to and on the day of the fire, and all the plant and some material and manufactured goods are there. American F. Ins. Co. v. Brighton Cotton Mfg. Co., 15 West. Rep. 180; 17 N. East. Rep. 771; 125 III. 131.

73.- Where, during repairs of machinery by a manufacturing company, watchmen were on duty and employees were about the factory from its closing until it burned, it is not unoccupied, within a policy providing that it shall be void upon non-occupancy without consent of the company. Brighton Mfg. Co. v. Reading F. Ins. Co., 33 Fed. Rep. 232; Brighton Mfg. Co. v. Fire Asso., Id.

234.

74.A building insured and intended to be occupied as a saloon, but the policy not designating the particular character of the building, or the use to which it was expected to be put, was not vacant, unoccupied or not in use, within the meaning of the policy, at the time of its destruction by fire, where plaintiff had taken actual possession with actual reference to using it as a saloon, and got it in order, and made it ready generally for that use. Stensgaard v. National F. Ins. Co., 36 Minn. 181; 30 N. W. Rep. 468.

75.- A building insured as and leased for a store room is not vacant or unoccupied while in the process of ordinary preparation for such purpose. *Rockford Ins. Co. v. Wright, 39 Ill. App. 574.

Co., 5 L. R. A. 744; 12 S. W. Rep. 498; 52
Ark. 257; 19 Ins. L. J. 305.

77. The change in use of a building insured as a dwelling house, from a dwelling to a kitchen, dining room, and storage place, used during the day in connection with an adjoining dwelling, is not obnoxious to the clause in the policy avoiding it for vacancy. *Rockford Ins. Co. v. Storig, 31 Ill. App. 486; aff'd, 19 Ins. L. J. 928.

78.- Evidence that furniture was still in a dwelling, that its owner had slept there until within a few days, and was there every day up to the fire, and arrangements had been made for another to sleep there, who had not done so at the time of the fire, but on the evening of the night of the fire was there and changed his clothes,-is sufficient to support a finding that the house was not unoccupied within the meaning of an insurance policy. *Home Ins. Co. v. Wood, 28 Pac. Rep. 167; 21 Ins. L. J. 179; 47 Kans. 521.

79.- A fire policy is not forfeited for non-occupancy as a dwelling house, where, on a surrender of the premises by a tenant, the insured took prompt means to procure another tenant, and during the interval between such surrender and the fire was frequently at the house during the day with members of his family, and employed a man to take care of and sleep in the house, and stored considerable fur*Traders' Ins. Co. v. niture therein.

Race, 21 Ins. L. J. 363; 29 N. East. Rep. 846 (Ill.); aff'd on rehearing, 31 N. East. Rep. 392.

80. There is no such vacancy of a house as will avoid a policy conditioned against vacancy, where on the day after the tenant moved out without giving the insured notice, the latter stayed in and about the house all day, and in the evening began packing up preparatory to 76. The vacancy of a tenant house moving into the house herself, leaving a while the owner occupies a dwelling in man in charge in the mean time. *Doud the same enclosure will not avoid a policy v. Citizens' Ins. Co., 141 Pa. 47; 28 W. N. by which, for a gross sum as considera-C. 20; 48 Phila. Leg. Int. 337; 21 Atl. Rep. tion, without specifying the rate on 505. either house, the owner is insured for $1,000, of which $400 is upon the tenant house and $600 upon the other, with a provision that the policy shall be of no effect if the " premises become vacant and unoccupied." *McQueeney v. Phoenix Ins.

81. Temporary vacancy. Policy provided that "so long as property insured should be unoccupied it would cease and be of no force or effect." Upon the trial court charged jury in substance that a few days vacancy pending a change of

Temporary Vacancy.

tenants would not void the policy in case the control of the insured, he should inof loss. Held, error, that the contract by its terms was suspended during such short and temporary period of unoccupancy, and became operative on reoccupancy. Etna Ins. Co. v. Meyers, 63 Ind. 238.

82. It seems that the assured is not required to give notice of a temporary vacancy, such as is incidental to a change of tenants. Alston v. Ins. Co., 80 N. C. 326.

83.- Work, at time of fire, had been stopped for five days, and how soon it would have been renewed was uncertain. Mill continued to be used for storage and delivery of goods, requiring daily visits of one or two persons. Held, not to be "unoccupied;" that such term in the policy had no reference to a temporary suspension of work in a mill. Albion Lead Works v. Williamsburg City Ins. Co., 9 Ins. L. J. 435; 2 Fed. Rep. 479.

84.- Condition provided that "this policy shall not cover unoccupied buildings unless insured as such, and if premises insured shall be vacated without consent indorsed . . ." insurance should be void. Assured having left premises for temporary purpose of attending funeral of a friend, held, that there was no breach of the conditions. Franklin Fire Ins. Co. v. Kepler, 10 Ins. L. J. 784; 95 Pa. 492.

form the company thereof as soon as it comes to his knowledge, and whether so informed or not, the company may raise the rate of premium or terminate the insurance, and that, if the risk is increased within his knowledge or control without written consent of the company, that it should be void. There was no condition providing that a vacancy of the building should affect the insurance. Held, that the temporary vacancy arising from the leaving of a tenant was to be deemed as a part of the risk, and that it was sufficient for the assured to give notice of the fact to the company, and that the question of increase of risk should be submitted to the jury. Lockwood v. Middlesex Mut. Ins. Co., 47 Conn. 553.

87. One of the conditions being that the policy should become void "if the house should become vacant or unoccupied," a temporary cessation to occupy which does not continue until the fire does not avoid the contract, nor does the absence of the tenant then occupying, on the night of the fire. Laselle v. Hoboken F. Ins. Co., 43 N. J. L. 468.

88.- When building is insured as a dwelling, and a tenant has removed and ceases to occupy it as a dwelling house, it renders void the insurance. Leaving behind a barrel of bran and coal oil does not prevent a forfeiture, and the length 85.- Policy contained clause that it of time intervening between the vacation should become void in event of the house and the fire is immaterial. Farmers' Ins. being vacant and unoccupied. Court Co. v. Wells, 15 Ins. L. J. 141; 42 Ohio St. charged the jury "if parties moving out| 519. and others moving in, and the necessary 89.- Policy read "if the dwelling time for such change of situation occurs between the moving out and the moving in, unless such time is unreasonable, the policy would not become invalidated," and left it to the jury to say what would be a reasonable time. Approved. Woodruff v. Imperial Fire Ins. Co., 83 N. Y. 133. 86.- Policy insured building, describing it as "frame dwelling house, occupied as a boarding-house. Occupancy, tenant." Tenant left the premises during the continuance of the policy. The assured notified company's agent that the house would be vacant until April, asking for consent. Agent promised that it would be all right. Policy contained a condition that if risk should be increased by any means beyond

house hereby insured shall cease to be occupied as such, then policy shall be void etc." The house was occupied by a tenant who removed all his furniture about six in the evening, and house was destroyed by fire two o'clock the following morning. Held, that the non-occupation avoided the policy. Bennett v. Agricultural Ins. Co., 50 Conn. 420; 12 Ins. L. J. 569.

90. Provision as to vacancy or unoccupancy can not be construed as excepting necessary temporary vacancies during change of tenants. Id.

91. If house is shown to be unoccupied the afternoon of the day preceding the fire, it shifts the burden of proof to the assured to establish that it became

Written Clause Prevails As Affected by Acts or Knowledge of Agent.

the day of the fire, was unoccupied except by the owner for a short time each day for the purpose of cleaning it. Fehse v. Council Bluffs Ins. Co., 74 Iowa, 676; 39 N. W. Rep. 87.

98. A mere temporary absence of the occupant of a building will not render void a policy which contains a provision that it shall be void in case the building becomes vacant. *Springfield F. & M. Ins. Co. v. McLimans, 45 N. W. Rep. 171; 28 Neb. 846,

99.— A building is vacant or unoccu

93.- Twelve or fifteen days of unoccupied, within the meaning of an insurance pancy, after removal of one tenant, to make place for another to whom house was actually rented, but who had not taken possession voids the insurance. East Tex. Fire Ins. Co. v. Smith, 3 Tex. Ct. App. Civ. Cas. 281.

policy which declares that the insurance shall be void in case it becomes vacant or unoccupied, where a tenant has moved out, although for the purpose of letting in new tenants who intend to move in the next day after a fire occurs, and who 94. Where assured goes away for á have already made some repairs on the visit for a few days, but leaves all her fur-house, but have left nothing in it, except niture and clothes in the insured house it two or three planes. *Continental Ins. is not vacant in the sense used in the pol- Co. v. Kyle, 9 L. R. A. 81; 19 Ins. L. J. icy. Johnson v. N. Y. Bowery F. Ins. 720; 24 N. East. Rep. 727 (Ind.) Co., 39 Hun, 410 (N. Y.)

99a.

A policy of fire insurance upon a building conditioned to be void if the building, "whether intended for occu

95. A stipulation in a policy, that the house was to be "occupied all the year round," is satisfied if permanent occupa-pancy by owner or tenant, be or become tion was resumed so long before the fire that temporary absence of the occupant plainly appears to have no connection with the loss. Ring v. Phoenix Assur. Co., 5 N. Eng. Rep. 387; 145 Mass. 426; 14 N. East. Rep. 525.

vacant or unoccupied or not in use, is not avoided by a vacancy for four days after one tenant moves out before the new tenant is to move in, although the house is destroyed by fire during that time. Roe v. Dwelling House Ins. Co., 30 W. N. C. 281 (Pa.)

change of tenants, restrains and controls the printed clauses rendering the policy void in case the property becomes vacant. Joy v. Pennsylvania Ins. Co., 35 Mo. App. 165.

96. A policy of insurance describing the building as one that is, "when com100. Written clause prevails. The pleted, to be occupied as a private dwell-written clause of a policy, permitting the ing house," and providing that, if it property to remain vacant during a "becomes vacant or unoccupied without the written permission of the company indorsed on the policy," it shall immediately cease and determine, is void when, after the completion of the building and its occupation by a tenant, it remains vacant and unoccupied, after the removal of the tenant, for fourteen days, during which time it is destroyed by fire. Royal Ins. Co. v. Lubelsky, 5 So. Rep. 768; 86 Ala. 530.

101. As affected by acts or knowledge of agent. A policy of insurance, issued upon a dwelling house occupied by tenants, and containing a provision that "the policy becomes void when the occupant personally vacates the premises, unless immediate notice be given to this company and additional premium paid.” will become void if the building is vacated and the only notice given thereof is to an agent of the company whose authority is limited “to take applications and coun

As Affected by Acts or Knowledge of Agent.

tersign policies, to collect and receive cash for premiums, and to issue a 'binder' on special hazards for ten days," and no additional premium is paid; and it is immaterial that the insured did not know the extent of the agent's authority. Harrison v. City Fire Ins. Co., 9 Allen, 231 (Mass.)

such action would not be consistent with any idea that they were to be discharged from liability by reason thereof, but that in this case the vacancy concerning which the parties conversed was one contemplated in the future, and the stipulation or understanding, if it amounted to anything, was an executory contract intended to form a part of the contract of insurance. This being so, the doctrine cannot be admitted that any part of the completed contract can rest in parol. The policy was the conclusion of the bargain, and its acceptance would exclude any parol promises inconsistent with it, 103. The fact that assured stated to and that, therefore, the company was not the agent that she would leave the prem-estopped from insisting upon the defense. ises temporarily does not prevent a for- Hartford Fire Ins. Co. v. Davenport, 37 feiture under condition in policy provid- Mich. 609. ing that if premises should become unoccupied it should be void. Etna Ins. Co. v. Burns, 5 Ins. L. J. 69 (Ky.)

102. If agent with knowledge that the building is unoccupied issues a policy with a clause providing that it is void if vacant, there is a waiver of any written or printed condition respecting the occupation of the premises. Devine v. Home Ins. Co., 32 Wis. 471.

104.- Condition that policy shall be void "if premises are or shall become vacant or unoccupied, without consent indorsed," is waived by knowledge of company's agent of the facts at time of issuing of policy and his assent to an understanding that property shall be vacant for a certain time. Cone v. Niagara Fire Ins. Co., 60 N. Y. 619.

105.- When a company receives a fee and executes an assent to a transfer or assignment through a local agent, assured is warranted in assuming that notice of a vacancy to such local agent is sufficient. Williams v. Canada Mut. Ins. Co., 27 Up. Can. C. P. 119.

106.- Policy provided that if the premises should become vacated by removal, and so remain for a period of more than fifteen days without notice and consent indorsed upon the policy, it should become void. The premises were burned during such vacancy. Evidence was received that before the issuing of the policy the insured had stated to the agent that he expected, during the continuance of the policy, to leave the house vacant during a year or more, and was informed it would make no difference, such evidence being relied upon as an estoppel. Held, that the cases which hold that an estoppel is created by knowledge of the company relate to a knowledge of existing facts at the time of its action, when

107.- When house is vacant with knowledge and consent of agent of company, and policy remains in his possession until after the fire, when it is delivered to the assured, who had no knowledge of its terms, company is estopped from availing itself of condition in policy as to vacancy. St. Paul Fire Ins. Co. v. Wells, 89 Ill. 82.

108.- When a local agent during the continuance of the policy is informed of a proposed change of tenants, and that the former tenant had quit possession, and he replies that it is "all right," there is a waiver of the condition in regard to occupancy. Palmer v. St.Paul Fire Ins. Co., 44 Wis. 201.

109.- When on applying for a policy insured informs agent of company that he is about to leave the house insured unoccupied, but in charge of a neighbor, the company is estopped from setting up a condition as to vacancy to defeat a claim for the insurance. Agricultural Ins. Co. v. Ansley, 15 Quebec L. R. 256.

110.- If policy is issued with knowledge on part of company's agent that the building covered is unoccupied, it operates as a waiver. Short v. Home Ins. Co., 12 Ins. L. J. 138; 90 N. Y, 16.

111.- General agents of an insurance company in the matter of issuing policies may make a valid stipulation for the insertion of a clause in a policy relating to the occupancy of the buildings insured. Continental Ins. Co. v. Ruckman, 127 Ill. 364; 20 N. East. Rep. 77.