February 15, 1932.
It is common knowledge that fire hazard is greater when dwellings are vacant, especially when situated in country.
2. INSURANCE. Provision that fire policy shall be void if premises remain vacant for more than ten days without insurer's written consent held reasonable and binding.
Provision of fire policy was reasonable and binding, as against contention insurers knew at time that policy was issued that property was occupied by a tenant, and that it might take reasonable time for owner to obtain knowledge of vacancy and to secure new tenants, since terms of policy were plain and unambiguous, and hazard of fire is much greater when dwelling house is vacant and unoccupied than otherwise.
APPEAL from circuit court of Calhoun county. HON. THOS. L. PEGRAM, Judge.
Wells, Jones, Wells Lipscomb, of Jackson, for appellant.
The vacancy clause in a fire insurance is valid and if a loss occurs while a violation of such exists, there can be no recovery.
Home Insurance Company v. Scales, 71 Miss. 975.
If the policy provides that the same is to become void by vacancy or nonoccupancy, the forfeiture does not depend at all upon insured's knowledge of the vacancy or nonoccupancy; nor upon his due diligence to keep the premises occupied.
26 Corpus Juris, page 211, par. 255.
Grant that the knowledge of the agent of appellant is imputable to the company, and the case is not altered. The company was not bound to notify the insured of the unoccupied condition of the house, if it actually knew it.
Home Insurance Co. v. Scales, 71 Miss. 975, 15 So. 134.
The insured is charged with notice of the provisions of his policy; if by his carelessness or inattention he avoids the policy and a loss occurs after its avoidance by his negligence or inattention, there can be no recovery on the policy.
Home Insurance Co. v. Scales, 71 Miss. 975, 15 So. 134.
Creekmore Creekmore, of Jackson, for appellee.
According to the prevailing view, if a fire insurance policy is taken on tenement property, provision for forfeiture in case the premises become vacant will operate only after a reasonable time has elapsed in which to obtain another tenant.
14 R.C.L. 1104, sec. 282; 26 C.J. 216, sec. 263.
Where tenant property is insured a change of tenants is contemplated, and any temporary vacancy caused by or incident to such change is not within the clause forfeiting the policy on account of vacancy or non-occupancy.
American Insurance Company v. Hayes, 296 S.W. 724.
However, the general and usual condition against vacancy, in insurance policies on property occupied by the owner, which is inserted in a policy on a building occupied by a tenant, will not operate to avoid the policy immediately upon the removal of the tenant, of which the owner neither has notice nor reasonable opportunity to obtain it. And if insurance is taken on tenement property, a provision for forfeiture, in case the premises become vacant, will operate only after a reasonable time has elapsed in which to obtain other tenants.
4 Couch on Insurance, sec. 970-f; Ohio Farmers Insurance Company v. Vogel, 76 N.E. 977; Hotchkiss v. Phoenix Ins. Co., 44 N.W. 1106; Eddy v. Ins. Co., 30 N.W. 808, 70 Iowa, 472; Worley v. Ins. Co. of Des Moines, Iowa, 59 N.W. 16; German Ins. Co. v. Davis (Neb.), 59 N.W. 698; Roe v. Dwelling House Insurance Co., 23 A. 718; Lockwood v. Middlesex Mut. Ins. Co., 47 Conn. 553; American Cent. Ins. Co. v. Clarey, 28 Ill. App. 195.
The rules as to vacancy incident to change of tenants is in most cases qualified by the condition that the period must not be unreasonably long.
3 Cooley on Insurance, page 2586.
Argued orally by L. Barrett Jones, for appellant and by Wade Creekmore, for appellee.
Appellee recovered judgment against appellant upon a policy of fire insurance covering a dwelling house owned by appellee, which was destroyed by fire on January 17, 1931. The policy contained the following provision: "If any of the buildings described are now vacant, unoccupied or uninhabited or shall become vacant, unoccupied or uninhabited and so remain for a period exceeding ten days, without written consent hereon, then in each and every one of the above cases this policy shall be null and void."
When the policy was written and delivered, the house was occupied by a tenant. The tenant wholly removed from the premises on December 29, 1930, and the dwelling remained vacant and unoccupied from that day until the time of the fire. The insured owner did not learn of the vacancy until January 13, 1931, and on that day he contracted with another tenant to occupy the premises, but, before the new tenant had actually moved into the dwelling, or had accomplished the occupancy, the fire occurred which destroyed the property.
It is the contention of appellee that, when the policy of insurance was issued, the insurer knew that the property was occupied by a tenant; that it was, and would continue to be, rental property; that, as an incident thereto, the insurer contemplated that the property would likely be vacated by a tenant; and that the owner would require a reasonable time to obtain knowledge of the vacancy and to secure a new tenant. The argument is, in effect, that the quoted stipulation in the policy is inconsistent with the known situation and incompatible with the objects of the insurance as applied to that known situation; that therefore the court should hold that, in spite of the plain and unambiguous terms of the policy, the insured would have a reasonable time to ascertain that the tenant had vacated the premises and a further reasonable time to install another tenant in the occupancy.
We cannot accede to this argument of appellee, and thereby rewrite this policy of insurance so as to make a different contract than that made by the parties. Nor do we regard it as just that we should do so, even if within our power. It is a matter of common knowledge that the hazard of fire is much greater when dwelling houses are vacant and unoccupied, especially when situated in the country, as was this property. The reasons for this increased danger are several, and each is obvious. Because thereof it is expected that fire insurance policies will carry some reasonable stipulation against vacancies, and that those reasonable stipulations will be enforced substantially as written, else the result would eventually be an increase of premium costs, to some extent at least, upon those who occupy their property and give it watchful care.
The authorities are, therefore, in substantial accord that a provision in a fire insurance policy to the effect that the same shall be void, if the insured premises shall remain vacant and unoccupied for a period of more than ten days, is a reasonable and a binding condition; and there can be no recovery if, after said period, the property while still vacant and unoccupied, is destroyed by fire. See Bias v. Globe Ins. Co., 85 W. Va. 134, 101 S.E. 247, 8 A.L.R. 373, and authorities therein cited. And, in order that the stipulation shall be effective, as written, it is the prevailing view that the knowledge of the insurer as to the vacancy is immaterial; nor is it material that the insured has in good faith and with due diligence attempted to keep the premises occupied. 3 Cooley's Briefs on Insurance (2 Ed.), p. 2595; 14 R.C.L. 1103.
We think the case is substantially covered by the holding of the court in Home Ins. Co. v. Scales, 71 Miss. 975, 15 So. 134, 42 Am. St. Rep. 512, but, if not so covered therein, it is certain that everything we have above said was distinctly foreshadowed by the opinion in that case. There is no dispute in the record as to the facts. It becomes our duty therefore to render final judgment here.
Reversed, and judgment here for appellant.