
    Case 67 — PETITION ORDINARY—
    December 17.
    Imperial Fire Ins. Co. v. Kiernan. Northern Ins. Co. v. Same.
    APPEALS prom jepperson court op common pleas.
    .1. Eire Insurance — Condition as to Occupancy. — Where a policy of fire insurance describes the house insured as “occupied as a family residence,” and by a subsequent clause provides that the policy shall become void if the house “shall be or become vacant or unoccupied,” the words “occupied as a family residence” must be regarded as but a representation as to the then use of the house, and the subsequent words as but an undertaking by the insured that the house shall not be without an occupant during the time covered by the policy.
    In this case it is held that such a policy did not become void ■upon the house insured ceasing to be occupied as a family resi- ■ denee, it continuing to be occupied by one person, who had access-. . to the entire building for the purpose of caring for it.
    2. A motion por a new trial must be made within three days after-the verdict is returned, whether the verdict be general or special,although judgment may not have been entered upon the verdict.
    3. Special Verdicts. — The finding of facts by a jury in answer to-questions submitted to them in writing constitutes a special verdict, and to entitle the plaintiff to judgment upon.such a verdict, it is not necessary that the jury should declare that if, upon the facts found, the plaintiff is entitled to recover, he is entitled to a certain sum, naming it, or that his damages are so much.
    In an action upon a policy of insurance, it was admitted that the parties had, by agreement through arbitrators, fixed the entire-loss, but what amount had been awarded was in issue. The jury found the amount of the award, which was greater than the amount, of the policy. Held — That upon this verdict the court was authorized to render judgment for the amount of the policy, the question as to the amount for which judgment should be rendered being,, under the circumstances, merely a legal one, and involving no-question of fact.
    F. T. FOX, Jr., por appellants.
    1. A special verdict must find all the essential facts. The. verdict in this case did not authorize a judgment for the plaintiff, because it. did not find any sum for which judgment should be given if the law should be found for him. (Wait’s N. T. Annotated Code, section 260. page 464; Manning v. Monaghan, 23 N. V., 539-41; Eiseman v. Swan, 6 Bosworth, 669; L., 0. & L. E. E. Oo. v. Case, 9 Bush, 734; Walker’s American Law, pages 645-6 and note a; Oarruthers’ History of a Law Suit, page 232; Minor’s Institutes, vol. 4, part 1, pages 750-53; Hann v. Field, Littell’s Select Cases, 377; McOlean v. Cooper, 3 Call, 367; Bacon’s Abr., Title, Verdict E.; Fryer v. Eoe, 12 Com. Bench, 437, and note, 444; Barnes v. Williams, 11 Wheat., 415; 4 How., 143; 20 How., 441; 8 Howard, 484; 23 Wall., 162; 91 IT. S., 131; Witty v. 0. O. & S. W. E. E. Oo., 6 Ky. Law Eep.)
    2. The rrial was not ended until the “decision” or judgment was rendered, and, therefore, the motion for a new trial was made in time. (Fonekes’ Actions at Law, page 148; Smith’s Actions at Law, page 134.) Allen v. Hill, 16 Cal., 117, is not authority in this State, as it does not appear what are the provisions of the ©alifornia Code upon this subject.
    3. The conditions of the policy sued on required the insured' house to be occupied as a family residence during the entire contract, and if at any time during the year it became vacant or unoccupied as a family residence, without notice to defendant, the policy became void. (Dennison v. Phoenix Ins. Co., 52 Iowa, 457; Keith v. Quincy M. Fire Ins. Co,, 10 Allen, 228; Am. Ins. Co. v. Padfield, '78 111., 167; Ashford v. B. M. Fire Ins. Co., 112 Mass., 422; Poor v. Humboldt Ins. Co., 125 Mass., 27,4; Corrigan v. Conn. Fire Ins. ■Co,, 122 Mass., 298; Harrison v. City Fire Ins. Co., 21 Allen (Mass.), '231; Cook v. The Continental Ins. Co., 70 Mo., 610; Herrmann v. Adriatic Fire Ins. Co., 85 N. Y., 163; Paine v. Agricultural Ins. ■Co., 5 N. Y., S. C., 619; Abrahams v. Agr. Ins. Co., 40 Up. Can., Q. B., 175; Sleeper v. N. H. Fire Ins. Co., 58 N. H., 401; The Am. Ins. Co. v. Foster, 92 111., 335; ¿Etna Ins. Co. v. Meyers, 63 Ind., 238; Wustum v. City Fire Ins. Co., 15 Wis., 138; Cummins v. Agr. Ins. Co., 67 N. Y., 262; Hill v. Eq. M. F. Ins. Co., 58 N. H., 82; MoLure v. Watertown Fire Ins. Co., 90 Pa. State; Wood on Insurance, page 184; Kelly v. Worcester M. Fire Ins. Co., 97 Mass., 286; North American Fire Ins. Co. v. Zaenger, 63 111., 464; Jackson, &c., v. .¿Etna Ins. Co., 16 B. M., 258-9; 13 Bush, 317; Germania Ins. Co. v. Kudwig, 79 Ky.; Bennett v. Agr. Ins. Co., Ins. Law Journal, Aug., 1883.)
    HABGIS and EASTIN our same side.
    1. There being no general or special verdict as to the amount plaintiff was entitled to recover, there was no verdict for damages on which to base a judgment.
    2. The award of the arbitrators was not declared on, and, therefore, furnished no excuse for the court assuming the functions of the jury and fixing the damages.
    8. The finding as to occupancy is against the evidence.
    Brief of associate counsel referred to for authorities.
    WM. LINDSAY for appellee.
    1. Policies of insurance are to be construed against the company when ■questions of doubt arise. (Evans v. Sanders, 8 Porter, Ala., 498; ■Insurance Co. v. Bland, 9 Dana, 151; ¿Etna Ins. Co. v. Jackson, •16 B. M., 259; Wood on Fire Insurance, page 146; Beynolds v. Ins. Co., 47 N. Y„ 597.)
    2. The words in the policy describing the house insured as a “family residence ” are mere words of description, and are to be treated as a representation, and not as a warranty. (Act of Feb. 4, 1874, Bullitt & Feland’s Gen. Stat., page 859; Germania Ins. Co. v. Bud wig, 3 Ky. Law Bep., 721.)
    8. Thesi$ words of description do not imply an agreement that the property insured shall continue in the same condition, or literally iin the same kind of occupation during the term of the insurance, ■or that the house will continue to be occupied. (Wood on Fire Insurance, section 90, page 184; Cum. Yalley Ins. Co. v. Douglass, 58. Pa. St., 419; Bryan v. Peabody Ins. Co., 8 W. Ya., 605.)
    
      •4. A single inhabitant eating and sleeping in the house, charged with the duty of taking care of it, constitutes an “occupation” within the meaning of that word as used in insurance policies. (Stupetski v. Transatlantic Ins. Co., 38 Am. Pep., 195; Herrmann v. Merchants’ Ins' Co., 81 N. Y., 184; 85 N. Y„ 169; Am. Ins. Co. v. Padfield, 78 111., 169; Havrigan v. Fitchburg Ins. Co., 124 Mass., 128.)
    .'S. F. J. TPABUE, Jr., on same side.
    1. The time within which a motion for a new trial must he made is to be counted from the return of the verdict, and not from the rendition of judgment thereon. (People ex rel Allen v. Hill et al., 16 Cal., 113; Peabody v. Phelps, 9 Cal., 213.)
    2. The words “ occupied as a family residence ” were not intended as a warranty. (81 N. Y., 184.)
    8. These words are to be treated as a representation, and not as a warranty, regardless of the intention. (Bullitt & Feland’s Stat., page 968; Germania Ins. Co. v. Pud wig, 3 Ky. Law Pep.,’721.)
    4. An occupancy by one person was all that was necessary to satisfy the conditions of the policy. (Shearman v. Niagara Fire Insurance Co., 46 N. Y„ 532-3.)
    -5. The special verdict was, in substance and in form, in strict conformity to the Code. (Civil Code of Practice, sections 326 and 327.)
   ■ JUDGE HOLT

delivered the opinion oe the court.

The policy of insurance issued by the appellants to the appellee, John Kiernan, was for one year from January 15, 1881, and described the property as “his two-story brick, single roof building, occupied ■ as a family residence.

A subsequent clause provided for its becoming void in these words: “or shall be or become vacant or unoccupied without notice to and consent of these ■ companies in writing.”

When insured it was occupied as a family residence by a tenant of the appellee, and the char■acter of the house was never changed; but on November 26, 1881, he, together with his family, moved out of it, although his lease would not have •expired until in March following; and on December 5, 1881, it was burnt.

When the tenant removed, the appellee, failing to-obtain another tenant immediately, got a man to-stay in one room of the house, which was furnished for the purpose, and who ate and slept there, having access to the entire building, for the purpose-of caring for and watching it; and he was so doing; when it was destroyed.

The policy provided, that if the parties to it differed as to the amount of any loss, it should be-fixed by arbitrators, whose written award should be binding upon the parties as to the amount, but-should not determine the liability of the appellants therefor. -

After proper proof had been made of the loss, the parties, by written contract, submitted the question of amount to arbitrators, who, by an award in writing, fixed it at five thousand six hundred and two' dollars and thirty-two cents. The appellants failing to pay the insurance, which was two thousand dollars by each company, the appellant brought these actions upon the policy (a joirib one by the two companies), alleging that his loss was ten thousand dollars, and asking judgment in each action for the-two thousand dollars. Subsequently, he, by an amended- petition, set up the agreement to arbitrate,, and the award.

The appellants seem at the outset to have mainly relied upon alleged actual fraud upon the appellee’s part; but the testimony disclosing his good faith, the-defense mainly urged by them at last in the lower' court was, that the policy became inoperative when-the house ceased to be occupied by a family, and that the words, - “occupied as a family residence,” constituted a continuing warranty that the house .• should be occupied by a family during the entire ■ time covered by the policy.

If this be so, however, then the subsequent provision that the policy should become void if the' house should “be or become vacant or unoccupied,” was needless. These words mean, without an occupant-; and if the words used in giving the description of the property, “occupied as a family residence,” imply an undertaking that the house should be oc- ■ cupied by a family during the term of insurance, then we must suppose that the insurers used the • subsequent words unnecessarily.

Effect should be given to both, if they can be - reconciled, and both be considered in construing the ■ contract; but forfeitures are not favored, and if the language be of doubtful import, it should be construed 'most strongly against the insurer.

If, under our law, the words “occupied as a family residence” could be treated as a warranty, we think, in view of the subsequent language, it could only beheld to be one as to the use of the house in presentí; but our statute provides; that “all statements, or descriptions in any application for or policy of' insurance shall be deemed and held representations,, and not warranties, nor shall any misrepresentation, unless material or fraudulent, prevent a recovery on., the policy.” (Gen. Stat., page 918.)

The parties must be considered as having con- • tracted -with reference to this statute, which was ■> upheld in the case of the Germania Insurance Company v. Rudwig, &c., 80 Ky. Rep., 223, and the ¡statement in the policy, “ occupied as a family residence,” must be regarded as but a representation as ■to its then use, and the subsequent words as but an undertaking by the insured that the house should .not be without an occupant during the time covered by the policy.

The motion of the appellants for a peremptory instruction in their behalf, in the nature of a non-suit, was based upon a counter view as to the proper •construction of the terms • of the policy.

It was equivalent to a demurrer to the appellee’s evidence; it presented a legal question only, and for the reasons supra was properly overruled.

Two questions remain to be disposed of: First, was there within the law any motion for a new trial ?

If not, we can not consider the correctness of the special verdict.

Second, if none, then did the special verdict ¡authorize the judgment?

No verdict save a special one was asked, directed •or returned; and it was rendered on January 13, 1883. The following is the substance of the facts found:

1. That the house was covered by the policy.
2. That the house, or a portion of it, was occupied up to the time of the fire after the tenant moved out of it.
3. Henry Suter, a negro boy, occupied the house and had access to all parts of it.
4. Suter was employed to occupy it and take ■charge of it.
5. Tenant moved ont before Ms term expired.
6. He did not move out with plaintiff’s consent.
7. Plaintiff attempted in good faith to get another tenant.
8. The award of the arbitrators was five thousand ¡six hundred and two dollars and thirty cents.-
a. Suter occupied a room attached to main house.
b. Suter was not married.
c. Suter occupied said room in charge of the .house.
d. Suter occupied it as a family residence.
e. Plaintiff gave no notice to defendant that the house was vacant or unoccupied.
f. Defendant did not. consent to said vacancy.
g. There were household goods and furniture in it belonging to plaintiff or to the tenant when tenant left it, or at the time of the fire.

Closing as follows:

“We, the jury, find as above.
“W. C. Smith, Foreman.”

Neither side objected to them; but each moved for a judgment in his and its favor, respectively, upon them.

The court took time and rendered a judgment for the appellee on May 7, 1883, for the amount of the ■policy. On May 8, 1883, or nearly four months .after the rendition of the verdict, the appellants filed grounds and entered a motion for a new trial. 'The appellee objected, and the motion was overruled.

Section 340 of the Civil Code provides: “A new trial is a re-examination in the same court of an issue of fact after, a verdict by a jury or a decision by the court.”

The expression, “decision by the court,” manifestly refers to a case where the facts as well as. the law are submitted to the judgment of the court.

Section 342 of the Code says:

“The application for a new trial must be made: at the term in which the verdict or decision is rendered; and except for the cause mentioned in section 340, subsection 7 (which did not exist in this case), shall be within three days after the verdict or decision is rendered, .unless unavoidably prevented.”

A motion for a new trial questions the finding of fact alone, whether by judge or jury. If a verdict-is complained of as unsupported by the evidence,, then it is assailed for the direct error of the jury;, but if the complaint be that the court committed an error, for instance in giving instructions, or in the admission of evidence, yet the verdict is assailed, as a consequential error. A motion for a new trial does not question the legal conclusion which the-court may reach in rendering a judgment. If it be-erroneous in not conforming to the verdict or the-finding of facts, a motion for a new trial is not the-, proper mode of correction. It may be • reviewed without such a motion, and by merely asking the-court to correct it, and the correction would not afiiect the verdict. A judgment is usually rendered when the verdict is returned into court; but need not necessarily be, even in the case of a general one. If the court is in doubt as to the proper' judgment to be rendered, it may wait to be advised. Even if it tries the facts, it may enter its. ■decision as to them, and take time as to the law -of the case. A party need not delay making his motion for a new trial until the judgment is entered. If the finding of fact be wrong, it is important that the court’s attention should at once be ■called to it; and, therefore, the time within which it may be done has been limited to three days. It is urged, however, that this is requiring a party to jump in the dark; to act without knowing what the court may do. It is a sufficient response to this to say, lex ita scripta est; but we see no good reason why a party should be allowed to speculate •on what the court may do; and if he does so, why ■ should he not be required, as' in numberless other -cases, to risk his judgment?

Suppose that a party against whom a general verdict has been returned moves for a judgnient in his favor non obstante veredicto; the court takes time upon the question and finally overrules the .motion, .•and renders a judgment upon the verdict. In such .a case can the plaintiff move for a new trial when more than three days have elapsed from the rendition of the verdict? We think not. The delay by the court in entering the legal conclusion can not •extend the statutory period fixed for questioning the finding of fact. The rule upon this point is the same, whether the verdict be a general or a special one. In the latter case it is final as'to the facts.

We have been unable to find but one case upon this question. ■

By the California Code, a notice of a motion for a new trial must be given within two days from the termination of the trial.

In the case of Allen v. Hill, 16 Cal., 113, a special verdict alone was rendered upon January 14, 1860. Judgment upon it was reserved until January 20,. 1860, and- the notice of the motion for a new trial given upon the next day.

It was urged that it was not required that the-notice should be given until the completion of the-trial; and that it was not complete until the judgment was rendered upon the special verdict; but. the court held otherwise, saying:

“It is urged that as the verdict was special it was necessary to invoke the action of the court before a judgment could be entered upon it, and. that, therefore, the trial itself did not in contemplation of law terminate until the judgment was. rendered. We -can not assent to this view. The-facts were settled by the verdict, and it only remained for the court to pronounce the conclusion, of the law upon the facts found. If the court erred in this respect, the error is a proper subject: of review, and a motion for a new' trial was unnecessary. If the verdict was not satisfactory, the-right to correct it did not depend upon the judgment, and the steps for that purpose should have-been taken within the time limited by the statute.”

In this case no question arises as to when the-trial terminated, because under our practice the period within which a motion for a new trial must be made dates from the rendition of the verdict.

It is said, however, that there was no verdict upon which a judgment could be entered for theappellee; that it found no sum for which one could be rendered; that it should have found the facts, and declared that if upon them the appellee was entitled to recover, then that he was entitled to a certain sum, naming it, or that his damages were so much.

A special verdict at common law was one by which the facts of the case were put upon the record; and section 326 of our Code defines it as “the' finding of facts by a jury as shown in their answers, to questions submitted to them in writing.”

It is true that section 327 of the Code, in speaking of it, says, that “on such finding the jury shall return a special verdict only;” but when the two-sections are considered together, it is manifest that this only means that when such a verdict is ordered,, it only shall be returned.

The petitions allege that the loss or damage was-ten thousand dollars; the award fixed it at five thousand, six hundred and two dollars and thirty cents, the appellants admitting in their' pleadings-that the question as to the amount of it was, by agreement, left to arbitrators, but denying that they found the award of five thousand six hundred and two dollars and thirty cents, which, issue was, however, settled by the special verdict; the prayer of the petitions is for a judgment for the amount of the insurance, which was less than the amount-of the award.

It is earnestly urged that, if the judgment was-based upon the special verdict, that then it should have been for tbe amount of tbe award, instead of tbe amount of tbe policy; that the lower court ..got tbe amount of tbe judgment from bis own mind, instead of tbe verdict, beyond wbicb be • could not go to get tbe ' facts; and that it is tbe ■ duty of a court in such a case to act upon tbe ver- ■ diet as it is and not as it should be. True it is, that in such a case it is the province of tbe jury ' to find tbe facts, and tbe court to declare tbe law; • and tbe damages to be recovered must be fixed by tbe jury, unless only a question of legal construction or a legal issue is involved.

Tbe jury, however, only find facts wbicb are in issue. Here tbe parties agreed that in the event of : a loss tbe appellees should pay not exceeding a certain sum, although the actual damage might be much more.

If tbe parties bad by contract fixed tbe amount ■ of tbe damages, and tbe appellee bad alleged it in bis petition, then it would govern, and no finding us to it would have been necessary. It would not have been in issue. Did they not do what was • equivalent to this when they by agreement sub- ' mitted tbe question to arbitrators %

Tbe special verdict found that tbe parties had, by agreement through arbitrators, fixed the entire ..loss, and it found tbe amount so fixed. This was before tbe court, together with tbe agreement of ' tbe parties, binding tbe insurer to pay a certain -sum, wbicb was less than tbe award.

Under these circumstances tbe question as to tbe ••amount for which the judgment should be rendered was merely a legal one, and involved no issue of fact.

.Judgments affirmed.  