
    Insurance Co. of North America v. Hannum.
    A policy of five insu/rance provided that “ if a building covered by this-policy shall become vacant or unoccupied without notice to or consent of the company, endorsed hereon, all liability hereunder will thereupon cease.” In an actioru on the policy, it appeared that the premises were leased to one Glasgow, whose-term expired on Thursday, April 1,1886. One Nugent leased the premises from April 1,1886, but was not able to take possession until Monday, April 5. Glasgow-removed a part of his eifects and obtained permission from the landlord to leave the remainder on the premises until Monday. On Saturday, Glasgow returned to the premises for the purpose of removing some of his goods, but he did not enter the house. On the evening of April 3, the house was burned. The court charged that the facts did not constitute such a non-occupancy of the premises for such a length of time as would vitiate the policy. Held not to be error.
    Feb. 11, 1889.
    Error, No. 158, July T. 1887, to review a judgment ou a verdict for plaintiff in an action of debt on a fire insurance policy by Jesse P. Hannum against tbe Insurance Co. of North America, at Oct. T. 1886, No. 6. Green and Clark, JJ., absent.
    Jesse P. Hannum, the plaintiff below, by articles of agreement dated Sept. 6, 1882, contracted to purchase from Henry C. Cochran a certain messuage and tract of land in Chester county, for $1,500, to be paid as follows: $100 on the execution of the agreement; $400 April 1, 1883 ; $500 April 1, 1884; and $500 April 1, 1885 ; the deferred payments to bear interest at 5 per cent, per annum; and, upon the payment of the whole, with said interest, a deed for the property was to be delivered. Upon the execution of the agreement, Hannum was to have the privilege of entering into possession of said premises, and farming the same as tenant under the said Henry C. Cochran, “ and if any of the said above mentioned installments be not paid on the day on which it shall become due, all moneys theretofore paid by ” him to said Cochran “ shall be considered as rent for said premises for the time he shall have occupied the same, etc.,” and said Cochran may at once dispossess him without previous demand or notice by amicable action and judgment in ejectment and writ of habere facias possessionem. Hannum paid the $100 at execution of the agreement, and, on the 1st of April, 1883, paid the $400 installment, with the interest on the remaining $1,000. On April 10, 1883, he took out a policy of fire insurance in the Insurance Co. of North America, in an amount not exceeding $450, for three years, to wit, to April 10, 1886. Being unable to pay the $500 installment, due April 1, 1884, he induced ¥m. Chalfant and Edwin Brosius, of ICennett Square, to buy out Henry C. Cochran, and take the title and assume the agreement. They paid Cochran and took a deed from him in May, 1884. The house was burned April 3,1886. Hannum obtained a deed from Chalfant <fc Brosius in May, 1887.
    The testimony of Glasgow, the colored tenant, who moved out April 1, as to the goods left in the house, was as follows: “A. I left some things in the cellar, a set of harness there and part of a barrel of turnips, and a rake and a hoe, and a box of brickmakers’ tools, (I am a brickmaker by trade,) and some things in the house. I just can’t tell you what was in the house, but there was some things in it. Q. Some things in the main part of the house ? A. Yes, sir. 'Q. Did you obtain the consent of Mr. Hannum to retain possession until the next Monday? A. Yes, sir; I asked him if I moved if he would let me permission to leave them there until Monday. Q. Monday, the 5th of April? A. Yes, sir. On Saturday I took my cabbage out of the hole, and he said the premises wouldn’t be occupied until Monday or Tuesday, and I told him I would take the things away Monday.”
    The further facts are stated iu the following charge of the court, by Euthey, P. J. :
    “This is an action brought by Jesse P. Hannum against the Insurance Co. of North America, under a policy of insurance dated April 10, 1883, upon his two and a half story frame shingle-roof house, 16 by 12 feet, with a one-story frame shingle-roof kitchen attached, 12 by 12 feet, situated in the township of East Marlborough, Chester county, Pennsylvania.
    “ It appears from the evidence that this property was burned on April 3, 1886, and that, under the conditions of the policy, referees were appointed to ascertain the amount of the loss sustained by the plaintiff. The referees ascertained the loss to be $400, and this suit was brought for the purpose of recovering that amount. The decision of the referees fixed simply the amount of the loss sustained, leaving all other questions that might arise in the case to be determined by the proper tribunal.
    “ The insurance company defends against the payment of the insurance upon two grounds: 1st, that Jesse P. Hannum, the insured, had not such an interest in the premises as was covered by his policy of insurance, and that, not having such an interest, he therefore cannot recover upon the policy; and, 2d, that the prejnises were unoccupied at the time of the fire, and that, under a clause in the conditions attached to and made a part of the policy of insurance, they are under no legal obligation, by reason of such non-occupancy, to pay the insurance.
    , “ The clause in the policy to which I have referred is in these words : ‘ If a building covered by this policy shall become vacant or unoccupied without notice to or consent of the company endorsed hereon, all liability hereunder will thereupon cease.’
    “ It appears that, on April 1, 1885, the premises were taken possession of by a colored man named Glasgow under a yearly lease, and that he continued in possession under that lease until April 1, 1886, when the premises were rented by the plaintiff to another tenant, Alvin Nugent, who was to take possession on April 1, 1886, the day when the lease to Glasgow expired, but that Nugent, for some cause, was not able to take possession until the following Monday, the 5th of April, the 1st of April being on Thursday.
    “ It further appears that Glasgow had rented a house in Kennett Square, where, on the 1st of April, he removed a considerable quantity of his household effects, taking with him the other member of his family, his housekeeper; that, learning Nugent would not take possession until Monday, he obtained permission from the plaintiff to leave a portion of his property upon the premises until the following Monday, and that he or his housekeeper retained possession of the key. He was not back at the house except once before the fire. His family and the greater portion of his property were removed on the 1st of April, and on Saturday he returned to the premises for the purpose of taking away that portion of the property he had not previously removed. He did not enter the house, the property which he removed being outside on the lot, but he was there on the premises on Saturday for the purpose of removing part of his property.
    “It is claimed by the defendants, under these undisputed facts, there being no dispute at all as to the facts in the case, that they are absolved from liability under the policy by reason of the clause contained therein and which I have read to you.
    
      “ The question to be considered is whether, under the conceded facts in the case, the policy is void. There can be no doubt as to what is meant by the occupancy of a building of this character. The occupancy contemplated by the policy was such as would be proper according to the character of the property insured. If the property insured is a dwelling, then the occupancy referred to is its occupancy as a dwelling in the ordinary way in which dwellings are occupied. If it is a bam, the occupancy is not a dwelling therein, but such occupancy as is usual with such property. The building in question being a dwelling-house, the occupancy contemplated by the policy would be its occupancy as a dwelling-house in the ordinary way in which such property is occupied. It was, therefore, under this policy, necessary, when the premises bécame vacant or unoccupied, to notify the defendant company and have its consent endorsed upon the policy.
    
      “ You are not to understand by the occupancy of premises that there must be some one in the house or on the premises during the whole period of the time of its occupancy, but that it is such occupancy as is usually had of such premises. A house may be occupied all the time, some one being bodily present in the house, or about the premises all the time, or no one may be in the immediate occupancy of the house, in the sense that he is there bodily present, and yet the house may be considered in law as occupied. The family might lock up the house and go away on a visit, and yet the house would not be in law unoccupied within the meaning of that clause in the policy; or they might go upon a visit to the seashore or to their neighbors, and remain away a reasonable length of time, and yet the house not be considered as unoccupied during the time its occupants were thus away. While a house, under such circumstances, is in law considered to be occupied, it must not, however, be left unoccupied for any considerable length of time.
    
      “ The law does not fix definitely any length of time during which the occupant of the house can remain away, so that each case has to stand upon its own merits, as to whether the length of time the occupant was absent from the premises was unreasonable under all the circumstances.
    
      “ Bearing this principle in mind, you will then ascertain the facts of this case. This house was in the possession of Glasgow up to Thursday, the 1st of April, when his lease expired. He removed therefrom, but obtained permission of the landlord to leave a portion of his goods in the house. He returned on Saturday and was upon the premises looking after his goods, or removing a portion of them. His lease expired on the 1st of April; the premises were rented to another, a portion of his goods were there, and on Saturday the premises were burned.
    [“ The question then arises as to whether there was such a non-occupancy of the premises as would require the owner of the premises, if he desired to keep his policy alive, to notify the company and have its consent endorsed upon the policy. In the judgment of the court it was not. The period of time during which the house was not occupied, or rather the condition in which it was during those two days, was not such a cessation of the occupancy contemplated by the policy for such a length of time as would vitiate the policy. It is true there was no one in the house during those two days, but there was not such a length of absence of the tenant therefrom as would vitiate the policy, and, therefore, if you find the facts to be as testified to by the witnesses, and as they are conceded, there being no dispute about the facts, then the policy is not in law vitiated.
    “ It is your duty to find what the facts of the case are, and it is for the court to say, from these facts, as found, whether the law is with one party or the other. I instruct you that, considering the conceded facts in the case, they do not constitute such a non-occupancy of the premises for such a length of time as would vitiate this policy; and if you find the facts to be as testified to and as coneeded, then the plaintiff is entitled, to recover the amount of the award, with interest, from the time it was made.”]
    The second point that arises in the .cáse is the allegation on the part of the defendants that, under the proven facts of the case, the plaintiff had not such an interest in the premises as was covered by the policy, and that, not having such an interest, he is not entitled to recover. Under the facts as shown with regard to the title, the plaintiff is entitled to recover. His policy is good in that respect, and, so far as that point is concerned, he is entitled to recover.
    The court refused the following points, submitted by defendant: .
    
      “ 1. The undisputed facts being that, at the time plaintiff’s dwelling-house was destroyed by fire, no one was living in it, and no one had been living in it for two days prior to that time, and no notice of that fact having been given to the defendant and its consent obtained, by such non-occupancy the house was vacant within the meaning of the contract between the parties as contained in the policy on which this suit is brought, and there can be no recovery.”
    “ 2. The occupancy of a dwelling-house consists in living in it, and if the tenant who had occupied these premises had rented other premises and on the 1st of April, 1886, had removed his family and the greater part of his goods from the premises in question, and had ceased to live therein, it constituted such a vacation as was contemplated in the contract between the parties; and the verdict should be for the defendant.”
    
      “ 3. The mere fact that the tenant left some few articles of furniture in the house in question, which he contemplated removing before it should be occupied by another tenant, and also retained the key, was not such an occupancy as is contemplated by the policy, and the verdict should be for the defendant.”
    
      “ 4. The testimony shows that the plaintiff was not the owner of the premises insured, and, under the terms of the policy, the plaintiff cannot recover, and the verdict must be for the defendant.”
    Verdict and judgment for plaintiff for $424.
    
      The assignments of error specified, 1, the portion of the charge within brackets, quoting it; and, 1-5, the refusal of defendants’ points, quoting them.
    
      R. T. Cornwell, for plaintiff in error.
    A practical occupancy, consistent with the purposes or uses for which it was insured, is intended, and an occupancy that measurably lessens the vigilance and care that would be incident to its use for such purposes, is not an occupancy within the meaning of the terms as thus employed. The intent of the parties in respect to occupancy is to be gathered from the usual and ordinary use of the premises for the purpose to which they are devoted. Wood on Fire Insurance, 181; Ashworth v. Ins. Co., 112 Mass. 422; Keith v. Ins. Co., 10 Allen, 228; Franklin Savings Institution v. Ins. Co., 119 Mass. 240.
    The fact that some of the goods remained in the house and the key had not been surrendered, does not constitute an occupancy of the premises. Corrigan v. Ins. Co., 122 Mass. 228; Wood on Fire Ins. 183; Farmers’ Ins. Co. v. Wells, 15 Ins. L. J. 141.
    Visiting the house frequently and maintaining a general oversight and care over it will not take the case out of the operation of the forfeiting clause. Paine v. Ins. Co., 5 T. & C., N. Y. 619; Wustum v. Ins. Co., 15 Wis. 138; Harrison v. Ins. Co., 9 Allen, 231; Keith v. Ins. Co., 10 Allen, 228.
    The length of time elapsing after the vacation and before the fire is wholly immaterial. Farmers’ Ins. Co. v. Wells, supra.
    In Lockwood v. Middlesex Mutual Asso. Co., 47 Conn. 553, the tenant moved out about six in the evening, and the fire broke out about eight hours later. In Bennett v. Ins. Co., 13 Ins. L. J. 817, the premises were vacated the evening before the fire.
    In Niagara Fire Ins. Co. v. Drda, Appellate Court, Fourth District, Illinois, opinion filed June 12,1886,19 Bradwell R. 70, the tenant moved out of the house two days before the fire occurred, while he was at the house on the evening of the night that the house was burned, and the insured had made arrangements for another tenant to move in after the former tenant had moved out. Held that there could be no recovery, citing Hartford Ins. Co. v. Webster, 69 Ill. 392; Cook v. Ins. Co., 70 Mo. 610; McClure v. Ins. Co., 90 Pa. 277; and Farmers’ Ins. Co. v. Wells, supra. To same effect, see especially McClure v. Ins. Co., 90 Pa. 277.
    In further support of the position that the dwelling-house was vacant and unoccupied within the meaning of the contract, we cite : Cummins v. Ins. Co., 5 Hun, N. Y. 554; Cone v. Ins. Co., 3 T. & C., N. Y. 33; Aetna Ins. Co. v. Burns, 5 Ins. L. J. 69; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164; American Ins. Co. v. Padfield, 8 Chicago Leg. News, 138; and Thayer v. Ins. Co., 5 Hun, N. Y. 566.
    
      The case is plainly distinguishable from that of Franklin Ins. Co. v. Kepler, 95 Pa. 492, where this court held that the absence of the insured from his house from Wednesday until Monday to attend a funeral was not a breach of a similar provision in the policy. There it was held that the premises were not vacated. The absence was upon an emergency, the insured still lived there and occupied the house as a dwelling within the meaning of the contract. He had not moved out and changed the place of his residence:
    The fact that the house burned so soon after its vacation only illustrates the increased hazard to which it was subjected, and the importance and propriety of putting such a condition, against non-occupancy, as here exists, in the policy. In all human probability, if the house had been occupied, it would not have burned. Such a house along the roadside, in the country, when vacated, is an inviting subject for the fire-fiend, and the maliciously disposed. It becomes at once a rendezvous for tramps, and, with the litter from straw beds and other debris of a moving scattered about, the hazard from loss by fire becomes imminent.
    
      Wm. M. Hayes, who was not heard, for defendant in error.
    The contract should be liberally construed so as to reach the intention of the parties. Haws v. Fire Ass. of Phila., 114 Pa. 431.
    What was the reasonable intention of parties insuring a tenant house? Surely they did not contemplate such vacancies as must necessarily occur in the usual and ordinary removals and changes of tenants.
    A change of tenants has no effect on the insurance, if the use be not changed. C. V. M. P. Co. v. Douglas, 58 Pa. 419.
    An occasional absence, for a single night, even though it should so chance as to be the night of the fire, would certainly not make it a vacant or unoccupied house. Chandler v. Ins. Co., 88 Pa. 228.
    A policy of insurance stipulating that it shall be void, “ if any change be made as to tenants or occupancy of the premises without the company being notified,” is not rendered void by the premises being allowed to become unoccupied without notice to the company. Somerset Ins. Co. v. Usaw, 112 Pa. 80.
    If we insist on a literal interpretation of this occupancy clause, the facts are undisputed that the house had not “ become vacant,” and was not “ unoccupied.”
    A mere temporary suspension of the business of the establishment (a tannery), for the purpose of repairing, or from want of a supply of materials, is clearly not ceasing to operate the establishment, within the meaning of the policy. Lebanon Mut. Ins. Co. v. Leathers, 20 W. N. C. 107.
    Our case is ruled by Ins. Co. v. Kepler, 95 Pa. 492.
    That equitable titles are sufficient to support insurance, is well established by a host of cases, among others, Ins. Co. v. Wilgus, 88 Pa. 107; Chandler v. Ins. Co., 88 Pa. 223; Ins. Co. v. Dougherty, 102 Pa. 568.
    Feb. 11, 1889.
   Per Curiam,

Judgment affirmed.  