Young v. Fidelity Casualty Co. , 202 Mo. App. 319 ( 1919 )

OPINION. Appellant contends that under the evidence the respondent did not at any time actually occupy the premises as his dwelling within the meaning of the policy, and relies mainly on the case of Cook v. Insurance Company, 70 Mo. 610. We have examined that decision and find that the facts there differ materially from the facts in case at bar, in this that in the Cook case the assured left the house and went elsewhere to reside, intending to move away permanently. While the assured in that case left a man in possession with instructions to sleep at the house at night, the man quit the premises several days before the fire and did not return. No one was in the house when the fire occurred. In that case the policy provided: "If the premises should become unoccupied the policy should be void." In the instant case it is conceded that the respondent intended to occupy this dwelling house, and there is ample evidence to show that he did in fact do so in person on a number of occasions prior to the loss.

The burden of proof to show the unoccupied condition of the premises as a dwelling was upon appellant.

While we think there is ample evidence in the record to justify the court, sitting as a jury, in finding that the respondent did in fact occupy this house as his dwelling between the date of the policy and the loss, still we are of the opinion that in view of other provisions in the policy it would be unnecessary to decide this question, as we think such provisions preclude appellant under the facts from contending that this house between October 13, 1915, the date of the policy, and November 2, 1915, the date of the loss, was not occupied by the respondent as a dwelling. This by reason of the 5th provision under the heading "General Provisions," as follows:

"The assured is privileged to leave the premises without an occupant in any one policy year for a period of four months, without prejudice to the insurance under the policy, etc. . . .

It is further provided by provision No. 7 that

"Within the meaning of this policy, the premises shall be deemed to be without an occupant when the assured and members of his household, including the domestic servants, are absent therefrom."

Under these provisions the respondent had a right to leave the premises unoccupied. The policy must be read as a whole, and by its terms appellant company agreed that the premises might remain unoccupied for a period of four months in each calendar year, without prejudice to the insurance.

Appellant has cited us to a number of Missouri cases defining the meaning of the word "unoccupied" as applied to dwellings, all of which we have examined with care. They all differ from the case at bar.

In the Cook case, 70 Mo. 610, the insured left the house and went elsewhere to reside before the loss and intended to move away permanently.

In Craig v. Insurance Company, 34 Mo. App. 481, the assured had rented his place to a tenant who was to move in March 1st, and had left the house four weeks before the fire, intending to move away. The fire occurred when no one was there. It was not a case of mere temporary absence.

The facts in Hoover v. Insurance Company, 93 Mo. App. 111,69 S.W. 42, show that the promises were entirely abandoned for a period of two months.

In Burnham v. Insurance Company, 75 Mo. App. 394, the fire policy gave thirty days for completion of building and to occupy as a dwelling. It was not completed within the thirty days and there was no pretense that it was occupied at the time of the fire.

In all these cases the insured did not actually use the house as a dwelling place and did not intend it as his home at the time, either never having moved in, or having moved away permanently when the loss occurred.

The meaning of occupancy as applied to insurance policies has been well stated by COLT, J., in Ashworth v. Insurance Co.,112 Mass. 422, as follows:

"Occupancy as applied to such buildings implies an actual use of the house as a dwelling place or something more than a use of it for storage.

"A dwelling house to be occupied must have in it the presence of human beings as their customary place of abode, not absolutely continuous but as a place of usual return."

Appellant assigns error in the refusal of the trial judge to admit evidence of the practise or custom of appellant company with reference to granting insurance on uncompleted houses not occupied as dwellings. Such evidence was clearly inadmissible, it being immaterial about its custom of writing policies. The company had written the policy in suit, and the question presented was whether it was liable under its provisions.

The only remaining question is whether the trial judge was warranted in assessing an attorney's fee as a penalty for vexatious refusal to pay the loss. Stated in another way, was there any evidence in the record of a vexatious refusal to pay on the part of the appellant company which would justify the court as a trier of the fact in assessing the penalty?

The last word on this subject comes from our Supreme Court in the case of Non-Royalty Shoe Company v. Phoenix Assur. Co., ___ Mo. ___, 210 S.W. 37, l.c. 43, where Judge FARIS approves a general rule laid down by the Kansas City Court of Appeals in the case of Patterson v. American Insurance Company,174 Mo. App. l.c. 44, 160 S.W. 62. This rule reads thus:

"And while affirmative proof is not required to show vexatious refusal, yet the penalty should not be inflicted unless the evidence and circumstances show that such refusal was willful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial; and merely because the judgment, after trial, is adverse to defendant's contention, is no reason for inflicting the penalty."

In the instant case the appellant company denied liability from the beginning and refused to pay. In view of the statement made by Mrs. Young, the wife of the respondent, to the company immediately following the loss to the effect that the house at the time of the burglary was unoccupied, we would be of the opinion that the company would be justified in contesting the question of liability, were it not for the fact that the policy contained the provision which permitted the house to remain unoccupied for a period of four months in each calendar year. The insurance was written on October 13, 1915, and the loss occurred Nov. 2nd, following. Considering this provision we are of the opinion that the company was not warranted in refusing to pay this loss, and under the circumstances the court was justified in finding that there was a vexatious refusal to pay. At least such facts and circumstances were sufficient evidence to sustain the finding of the trier of the fact.

In view of the above and foregoing the Commissioner recommends that the judgment of the trial court be affirmed.