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his intention was to reside elsewhere, and to that end had removed his family and most of his household goods, but his intention was to return to get what remained of his personal property.
The court found: “It is not true that at the time of the destruction by fire of said premises, to wit, on the first day of October, 1913, said premises described therein and so insured by said policy of fire insurance were not occupied only as a private dwelling, and it is not true that said premises" at said time were "wholly or at all vacant and unoccupied, or vacant or unoccupied.” The contention of appellant is that this finding is unsupported by the evidence. The cases are numerous in which the terms occupied," "vacant, Occupied and vacant,” “occupied or vacant,” are defined, and are by no means harmonious. All agree that existing conditions when the policy is issued have much to do with arriving at the intention of the parties. A different construction is given to these terms in case of loss by fire where the premises were by the insurer known to have been occupied by a tenant when insured, as was the case here, from that given where the insured was the owner and the occupant. Also consideration is given to the character of the premises and the use to which they are being put. In the case of Omaha Fire Ins. Co. v. Sinnott, 54 Neb. 522, [74 N. W. 955), the policy provided that the insured house was and should continue to be occupied, and it was claimed that this warranty was broken by reason of the house becoming unoccupied and continuing to be vacant before the fire. Said the court: "The evidence most favorable to this contention was, in effect, that while the policy was in force, to wit, about July 11, 1894, the owner of the insured property notified her tenant to vacate it; that immediately thereafter the tenant began to remove his furniture to another house, to which he went with his family. When the fire took place, however, he had not yet removed his cook-stove and some other personal property. Under these conditions, we cannot say that the jury improperly concluded, from a consideration of the evidence, that the house was not occupied at the time of the fire." In cases of tenancy, it is reasonable to assume that the parties contemplated that some space of time might necessarily elapse after the tenant's family had moved from the premises before the tenant could remove all his household goods or possession could be given
to the landlord or to another tenant. In the case of Norman v. Missouri etc. Ins. Co., 74 Mo. App. 456, a distinction is drawn between the terms "vacant” and “unoccupied." In that case the tenant had, on the evening of October 5th, taken his family to a neighborhood house and had removed a part of his furniture, leaving a part in the building, but retaining the keys and possession until he should have time the next day to remove the remainder of his household effects. During the night of the 5th and 6th, at about 1 o'clock in the morning, the building and contents were destroyed by fire. The court held the company liable notwithstanding the provision of the policy that“ as soon as buildings become vacant the insurance shall be void," and that the building was not vacant.
Weidert v. State Ins. Co., 19 Or. 261, [20 Am. St. Rep. 809, 24 Pac. 242], was a case where one McNett, a tenant, moved into the premises in April and lived there until June 15th or 20th, when he moved away, but a hired man or some member of the family “was there at the house every day to see if things were all right ..., that they went down there to see that nothing was destroyed.” The fire occurred on the night of July 9th. The court held that conceding to the fullest extent all the facts that this evidence tends to prove, no occupancy of the premises was shown after McNett moved out. The provision of the policy involved was as follows:
.. or if any change shall take place in the title, possession, or occupancy” without immediate notice to the company and its consent obtained, “this policy shall . . . be null and void.” Several cases are cited in the opinion supporting the view there taken, but, as in the principal case, the occupant seems to have moved away from the premises and was using the former dwelling as a sort of place of storage for some portion of his household effects.
In Norman v. Missouri etc. Ins. Co., 74 Mo. App. 456, the court said: "Removal was in fieri, not complete. If the tenant had, on the evening of October 5th, taken his family to a neighbor's house, leaving his household goods packed and ready for moving the next day, could it with any show of reason be said that the building was vacant? Surely not. Neither could it be said to be vacant if the tenant had taken away a portion and left a portion for removal the following day. The house would not in either event be vacant, though
unoccupied.” The court seems to have held to the strict meaning of "vacant," a distinction which we do not think is unbending or may be arbitrarily applied.
The circumstances existing at the time must necessarily be factors in determining whether or not the building is unoccupied or vacant. These terms may, therefore, be treated as synonymous in their meaning. This was shown in Herrman v. Adriatic Ins. Co., 85 N. Y. 162, [39 Am. Rep. 644], a case in which it was held as a general proposition that "for a dwelling-house to be in a state of occupation, there must be in it the presence of human beings as at their customary place of abode, not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage.
Cummins v. Agricultural Ins. Co., 5 Hun (N. Y.), 554, was a case where the policy provided that if the dwellinghouse became vacated by the removal of the owner or occupant, “the policy shall be null and void until the written consent of the company at the home office is obtained.” It was held that the provision, "vacated by the removal of the owner or occupant,” means an abandonment of the house as an actual place of residence, permanently or temporarily. A mere temporary absence of the family from the house for a night or a day would not be such a removal."
In Bennett v. Agricultural Ins. Co., 50 Conn. 426, the insured building was occupied by a tenant, and the policy provided that if the dwelling should "cease to be occupied as such .. the policy shall cease and be of no effect. The proof showed that the house was occupied about a month and a half in the spring of 1880, that it was thereafter again occupied, and that the tenant moved out about 6 o'clock in the evening on the day preceding the fire, and the house remained unoccupied until it was destroyed by fire, about 2 o'clock the next morning. “This," said the court, "was clearly a violation of this condition of the policy." That case is easily distinguishable from the present case. There was a complete abandonment of the dwelling, the tenant leaving nothing in the house and having surrendered possession completely and having no occasion to return for any purpose. It was not a temporary absence, but an actual giving up of the premises. The length of time the building was unoccupied was, therefore, an immaterial factor.
A tenant moved out of an insured dwelling on Tuesday and on Wednesday morning the owner took possession, and with his servants, began cleaning it and moving in goods, and were continuously so engaged during the working hours of each day until Friday evening; intending that the family should be fully domiciled there Saturday, but meanwhile lodging and taking their meals elsewhere. On Friday night the house was burned, and it was held that the policy had not become void on the ground of vacancy or nonoccupancy. (Eddy v. Hawkeye Ins. Co., 70 Iowa, 472, (59 Am. Rep. 444, 30 N. W. 808].) “There is no case to which our attention has been called," said the court, “which holds that a house is vacant or unoccupied by the mere fact of the physical absence of the occupants for a day or night.” The case of Shackleton v. Sun Fire Office, 55 Mich, 288, (54 Am. Rep. 379, 21 N. W. 343), is cited in the opinion. In that case the tenant vacated the house June 19th, and the owner took possession, put her furniture in the building, but, for what seemed to be good reasons, she did not take her meals nor lodge in the house, and it was destroyed by fire on July 4th. It was held that the house was not vacant or unoccupied. within the meaning of the contract. Said the court: “Nothing apparently was wanting to complete personal possession, except that she lodged and took her meals at her father's, a few rods off. Those facts were not conclusive against her occupancy."
We can see no reason why the rule should be different where a tenant is moving into a house than where he is moving out. In both cases he is in possession of the house and has some or all of his goods there, but for sufficient reasons he finds it necessary temporarily to lodge elsewhere while moving in or moving out, as the case may be. No fixed and unbending rule seems to be deducible from the adjudicated cases. The courts take into consideration all the circumstances and attribute such intention to the parties in entering into the contract as would appear consonant with reason. As was said in the Michigan case last above referred to, the facts in this case “are not conclusive against the tenant's occupancy."
2. The court found that defendant did not serve its notice of disagreement or demand for appraisement within the time required by the policy, and that plaintiff complied with and
performed all of its terms on his part. This finding is challenged. The policy provided that the company "shall be deemed to have waived assent 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," etc. (see provision supra). Defendant, at San Francisco, mailed a letter to plaintiff, residing at Whitmore, Shasta County, on the twentieth day after the receipt of proof of loss, which letter was received by plaintiff two days later. Defendant contends that “the mailing of the notice of disagreement within the twenty days is sufficient under the terms of the policy even though it is not received until after the expiration of the twenty days.” Respondent contends that where, as here, the loss was total and so conceded, there was no occasion for arbitration, and appellant was not prejudiced by the ruling of the court. However this may be, we think defendant failed to give the notice contemplated by the policy. In Winchester v. North British etc. Co., 160 Cal. 1, [35 L. R. A. (N. S.) 404, 116 Pac. 63], the defendant made demand for the appointment of appraisers, but the notice did not reach plaintiff's attorney in fact until after the expiration of sixty days. It was held that “the failure to serve such notice upon the insured within sixty days after service of proof of loss amounted to a waiver.” The policy read: “The sum for which the company is liable pursuant to the policy shall be payable sixty days after due notice," etc. The question there was as to the time when the action could be brought. The language of the present policy is, "unless within twenty days after the receipt” of proofs of loss, the company “shall notify the insured," etc.
It appears from the transcript in the Winchester case that due proof of loss was made on May 14, 1908, and on July 8th, within sixty days after proof of loss, defendant duly posted a letter addressed to plaintiff's attorney in fact, giving notice of its disagreement, etc. The court found that said demand "was received by plaintiff's attorney in fact on the eighteenth day of July, 1908, and more than sixty days after the service of said proof of loss." In the present case the notice was received two days too late; in the Winchester case four days too late. We think the Winchester case decisive of the point.