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ises habitable. The only notice then given by the defendant was a letter written on January 3d to the effect that on the fifth day of that month the defendant would vacate, which letter the plaintiff received on the day the defendant moved out.

Complaint is made that the defendant was not permitted to introduce evidence as to the effect upon the health of the defendant's employees of the condition of the basement; but the court permitted proof of such condition, and stated that it would itself draw its conclusion as to its effect upon the health of the occupants. We see no error in this ruling.

Judgment and order affirmed.

Lennon, P.J., and Richards, J., concurred.

[Civ. No. 1490. Third Appellate District. --September 30, 1916.) DAVID E. COVEY, Respondent, v. NATIONAL UNION



dwelling is not vacant or unoccupied within the meaning of a clause in a policy of insurance providing that the company will not be liable for loss or damage from fire occurring while the building is vacant or unoccupied beyond the period of ten days, where, at the time of the fire, the occupant of the premises for the period of one year next preceding the fire was in the act of removing from the premises, but had not completed such removal nor surrendered possession to the landlord, although he had actually removed himself


OF NOTICE.—Where a policy of fire insurance provides that the company shall be deemed to have assented to the amount of the loss claimed by the insured in his preliminary proof of loss, unless within twenty days after the receipt thereof the company shall notify the insured in writing of its disagreement with the amount claimed, a notice of disagreement given by letter mailed on the twentieth day after the receipt of such proof of loss to the insured residing in a different place, and received two days after the mail. ing, is not given in time.


policy of fire insurance provides that if for any reason not attributable to the insured or to the appraiser appointed by him, an appraisement is not had and completed within ninety days after the preliminary proof of loss is received by the company, the insured is not to be prejudiced by the failure to make an appraisement, and may prove the amount of his loss in an action brought without such appraisement, a demand for an appraisement given by letter mailed before the expiration of said ninety-day period but not received until after its expiration is not within time.

APPEAL from a judgment of the Superior Court of Shasta County. James G. Estep, Judge.

The facts are stated in the opinion of the court.

Sterling Carr, for Appellant.

Braynard & Kimball, for Respondent.

CHIPMAN, P. J.-The cause was tried by the court without a jury and plaintiff had judgment for eight hundred dollars, as damages for loss by fire against which defendant had issued its policy of insurance. Defendant appeals from the judgment under the alternative method.

The following were stipulated as facts in the case: The policy took effect July 13, 1913, and was for one year; the insured building was destroyed by fire October 1, 1913, about the hour of 2 A. M.; notice of the fire was received by defendant October 21, 1913, and on November 19, 1913, proof of loss was filed with defendant; by letter dated December 8, 1913, defendant wrote plaintiff notifying him of its "total disagreement of the amount claimed” by plaintiff, and that defendant “admits a loss of $290.91 on the property described in abovementioned policy''; this letter was mailed at San Francisco on December 9, 1913, and was received by plaintiff on December 12, 1913; on December 31, 1913, plaintiff brought an action on said policy for eight hundred dollars, in all respects the same as the present action; the first action was dismissed April 4, 1914, and the present action was commenced on April 8, 1914; on February 16, 1914, defendant mailed to plaintiff "a demand for arbitration” by letter dated at San Francisco on that day, and directed to plaintiff at “Millville,

Shasta County, California,” notifying him that defendant "failed to agree as to the amount of loss caused by fire of October 1st, 1913, to the building described in . . . Policy No. 5116 . . . as admitted in our notice to you dated December 8, 1913”; and stated that “this company demands an appraisement of the loss . . . and names L. N. Bursen a competent and disinterested appraiser," and calls upon plaintiff to appoint an appraiser and so notify defendant; “this notice was received at Millville by Mr. Covey February 20, 1914. No appraiser was ever appointed by Mr. Covey and no notice was ever taken of this demand.

The policy in question was what is known as the standard California form. Certain of its provisions are more or less applicable to the case in hand and will be given in the order found in the policy, omitting intermediate provisions, as follows:

"$800. On the two story frame dwelling and its adjoining and connecting additions ... and all permanent fixtures therein and attached thereto, property of assured, while occupied only as a private dwelling, situate (as per diagram) on the north side of Main street in Whitmore, Shasta County,

California. ...

“This policy is made and accepted subject to the foregoing stipulations and conditions and those hereinafter stated, which are hereby specifically referred to, and made part of this policy, together with such provisions, agreements or conditions as may be endorsed thereon or added thereto, etc.

"Unless otherwise provided by agreement endorsed hereon or added hereto, this company shall not be liable for loss or damage occurring ... (f) while a building herein described whether intended for occupation by owner or tenant, is vacant or unoccupied beyond the period of ten consecutive days.

“This company shall be deemed to have assented to the amount of the loss claimed by the insured in his preliminary proof of loss, unless within twenty days after the receipt thereof ... the company shall notify the insured in writing of its partial or total disagreement with the amount of loss claimed by him and shall notify him in writing of the amount of the loss, if any, the company admits on each of the different articles or properties set forth in the preliminary proof or amendments thereto.

"If the insured and this company fail to agree, in whole or in part, as to the amount of loss within ten days after such notification, this company shall forthwith demand in writing an appraisement of the loss or part of loss as to which there is a disagreement and shall name a competent and disinterested appraiser, and the insured within five days after the receipt of such demand and name, shall appoint a disinterested appraiser and notify the company thereof in writing, and the two so chosen shall, before commencing the appraisement, select a competent and disinterested umpire. ...

"A loss hereunder shall be payable in thirty days after the amount thereof has been ascertained either by agreement or by appraisement, but if such ascertainment is not had or made within sixty days after the receipt by the company of the preliminary proof of loss, then the loss shall be payable in ninety days after such receipt."

1. It is contended by appellant that the findings to the effect that the insured building was totally destroyed by fire “while occupied as a private dwelling" is not supported by the evidence. The premises were under lease by plaintiff to one Moses C. Tribble, who testified that he had been living in the house with his family for something over a year" as a “dwelling-house”; that on September 28, 1913, he commenced to move his family and household effects; that he did not “move all his household effects or personal property from the house before it was destroyed by fire''; that he did not sleep in the house after the night of September 27th. He was asked what remained at the place after he removed his wife and was there on the night of the 30th of September. “A. I know there was stuff there left in my care. The stuff didn't belong to me, left in my care. Had some household things, junk there that would naturally accumulate with farming, and so it was there, and what there was I could not say. I would not confine myself down. Q. Was there any furniture there? A. No, sir. . . . Q. And then all there was left there was some chickens running around the yard and this accumulation of things ? A. Yes, sir,” He testified that he was at the premises about 4 o'clock in the afternoon of September 30th. “I had some chickens there and I was trying to catch these chickens and get them and take them and move them up to the place where I was moving to. Q. Did you at any time notify Mr. Covey that you were about to move from the

premises ? A. Well, I think, yes. I think I told Mr. Covey that I intended to move but as to the exact day that I told Mr. Covey, I could not say. Q. As to the time when you would move? A. Yes, because it was on account of the health of my wife. She was down with rheumatism and I didn't know really when I could move. Q. Yes. Who had the key to the dwelling at the time of the fire? A. The key was in my possession.”

Plaintiff testified that he was at the premises on September 30th, the day before the fire. “Q. Was there anybody upon the premises at that time? A. Yes, sir; Mr. Tribble was there.

Q. Was he a tenant of the property? A. Yes, sir. Q. Your tenant ? A. Yes, sir. Q. And what were the conditions there with reference to whether or not the property was occupied at the time that you were there? A. It was occupied, yes; the man had his stuff there, was hauling some of his stuff off, and catching his chickens and one thing and another. His poultry was there. ... Q. Do you know whether any of his household goods were still upon the property! A. Yes, we went through the house and seen some boxes and household things there. Don't know what he had boxed up, something another.... Q. Had Mr. Tribble at that time turned over the key to the premises ? A. No, sir." On cross-examination he testified that Tribble told him he was moving off. “Q. But Mr. Tribble told you, did he not, that he was going to move out that day? A. No, sir; didn't say he was going to move that day. Q. Never said so? A. He said he was moving out. Q. As a matter of fact, he did move out that day! A. I don't know. No, sir, I don't think so. He testified that Tribble had been in possession of the premises for something over a year"; that he was paying $75 per year and had paid his rent in full; that he learned that Tribble was going to move away “somewhere near the 30th, about that day I think is the first I can remember.”

It was admitted that the building was totally destroyed."

We think the situation at the time the fire occurred, to wit, 2 A. M., October 1st, briefly stated, was as follows: Plaintiff's tenant was not in actual physical possession of the premises, but had the right of possession and was still in the act of moving his effects therefrom; that he was the recognized tenant and retained possession of the keys to the building, and that he had not surrendered possession to his landlord; that

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