FOLEY v. SONOMA COUNTY FARMERS MUT FIRE INS CO OF SONOMA (1941)

This action was brought to recover under a policy of fire insurance. Findings were made in favor of plaintiffs, and judgment in the sum of $1,247 was entered against appellant. The latter appeals from said judgment.

The sole question on appeal is whether or not the following finding had sufficient evidentiary support: “That it is not true ‘that no person resided upon, inhabited and/or occupied the dwelling house on said real property from and after the 14th day of October, 1934, or that said dwelling house remained uninhabited, unused and/or unoccupied from the 14th day of October, 1934, to the 28th day of October, 1934’.”

The facts present no dispute. Plaintiffs absented themselves from the insured property on October 15, 1934. They left for the purpose of visiting a daughter, and with the intention of remaining away three or four days. This daughter resided in Pittsburg, California. While at Pittsburg, plaintiffs decided to visit another daughter at Stockton, California, and went to Stockton for that purpose. During the presence of the plaintiffs at Stockton, and on the evening of October 28, 1934, the dwelling house and the personal property contained therein were destroyed by a fire of unknown origin.

It is thus seen that at the time of the fire, plaintiffs had been away from the premises from the 15th to the 28th of October,—a period of thirteen days. It was stipulated that there was no notice of, or consent by, the defendant, concerning plaintiffs' absence from the premises.

The policy, under the heading of “Matters Suspending Insurance”, provided that the coverage would not exist while the building therein described was “vacant or unoccupied beyond the period of ten (10) consecutive days”. In 26 C.J., pages 208, 209, paragraph 253, it is said: “A new stage in the development of the law on this question was reached by the insertion in the policy, in terms of various character, of an express prohibition of vacancy or nonoccupancy. The linking together by the copulative conjunction of the two words ‘vacant’ and ‘unoccupied’, each of which had formed the principal member of previous clauses, was the next change in phraseology, under which it was held that both vacancy and nonoccupancy must occur. Finally the modern and standard policy, using the alternative conjunction, provides that the contract of insurance shall be void if the building insured shall become ‘vacant or unoccupied’ and so remain for a specified number of days; and under this provision the policy is avoided if either vacancy or non-occupancy occurs. These specific provisions have uniformly been upheld as reasonable and valid, and a breach thereof will avoid the policy.”

As stated in 29 American Jurisprudence, page 537, section 689: “It is generally and uniformly held that conditions or stipulations in policies of insurance, providing that the same shall be rendered void if the premises insured shall be, become, or remain vacant or unoccupied for a specified length of time, are reasonable and valid conditions, a breach of which will provide a ground of forfeiture of the policy and preclude the insured from recovering upon it. Both conditions need not be shown in order to avoid a policy of insurance under a clause making it void when ‘vacant or unoccupied’.”

In 26 C.J., page 212, section 258, it is said: “The term ‘vacant’ has been construed to mean empty, deprive of contents, without inanimate objects. It implies entire abandonment, nonoccupancy for any purpose. On the other hand, ‘unoccupied’ has been held to mean without animate objects, and implies that no actual use is being made of the premises by anyone corporeally present or in possession. * Whether a building is vacant or unoccupied within the meaning of a policy is a question of fact for the jury; but what is meant by the terms ‘vacant’ and ‘unoccupied’ is a question of law.”

Appellant does not contend that the dwelling was “vacant” when the fire occurred, but earnestly maintains that it was “unoccupied”. As to the latter contention, we are in accord.

The question is not a novel one in this state. The point was squarely decided by this court in the case of Mauck v. Northwestern National Insurance Co., 102 Cal.App. 510, 283 P. 338, where we reviewed numerous authorities supporting the view that where the period of nonoccupancy is definitely limited in the contract of insurance, and the insured property is burned while unoccupied beyond the prescribed period, no recovery can be had. It is true the building there destroyed was not occupied for a period of a year, but we do not believe that the length of time when it was unoccupied, in excess of the ten-day permissive period, affected the application of the legal principle laid down in the foregoing quotations from Corpus Juris and American Jurisprudence. Whether the breach is long-continued or of short duration is immaterial. In either case the policy is voided. The following cases support the rule enunciated in the Mauck case: Hudson Ins. Co. v. McKnight et al., Tex.Civ.App., 58 S.W.2d 1088; Liverpool & London Globe Insurance Co. v. Baker, Tex.Civ.App., 198 S.W. 632, 633; Kinneer v. Southwestern Mutual Fire Ass'n, 322 Pa. 100, 185 A. 194.

All the cases relied upon by respondents relate solely to the clause used in the earlier period of the history of insurance, where the period of unoccupiedness was not definitely limited as to time. Respondents then point to the finding here,—“That plaintiffs were temporarily absent from their said residence and place of abode from on or about the 15th day of October, 1934, to the 28th day of October, 1934, a period of about thirteen days *.” Under the older form of policy referred to above, there being no time limit for nonoccupancy, the question as to what was a temporary absence from the premises, was left to the court or jury. In many of the earlier of the cases, the insurer, to make out a breach of the policy relating to occupancy, was called upon to prove a practical abandonment of the insured property. Such is the holding in the case of Covey v. National Union Fire Insurance Co., 31 Cal.App. 579, 161 P. 35, decided by this court in 1916. There, although the policy contained a clause similar to the one under discussion, a rider was subsequently attached which provided that the property was insured “while occupied only as a private dwelling”. The trial court found that the insured property was totally destroyed by fire “while occupied as a private dwelling”, and appellant contended that there was not sufficient evidence to support such finding. No mention is made in the opinion of the clause with the ten-day limitation, (except as it appeared in the quoted policy), and the decision was evidently based upon the legal principle that the rider supplanted such clause. The dwelling was burned October 1st. The evidence shows that the tenant of the insured actually lived there up to September 28th, when he started to move therefrom. His wife was there the night of September 30th. This court held that the premises were “occupied” when the fire occurred on October 1st, and cited those cases which do not involve the time limitation, and which hold that under such a policy the insured must prove that the dwelling was abandoned, and that a mere temporary absence will not prevent a recovery. Under the policy here, a temporary absence is permitted, but it is limited to ten days. The distinction is clearly pointed out in the Kinneer case, supra [32 Pa. 100, 185 A. 195]: “It is a matter of common knowledge that there is more danger of an unoccupied house being destroyed by fire than of one occupied. The reason that suggests itself is that when human beings occupy a house they are on guard against a fire hazard. When a company insures a house against fire, it is entitled to have the property occupied, and therefore presumably protected by the occupants, except when the occupants are away for brief periods. The period during which this insurance company was willing to tolerate unoccupancy, unless special permit was asked for and obtained, was ten days. When the insurance company stipulated in its contract that the policy would be voided by a vacancy continuing more than ten days and unconsented to by the company, the insured could not have been in doubt as to exactly what was meant. In the present instance, no permit for a vacancy of more than ten days was granted to the owner in 1931, yet no human being occupied this house for a period of thirteen days before the fire which destroyed it in November of that year.”

The lengthy excerpts from Cooley's Brief on Insurance (2d), volume 3, commencing at section 2566, and relied upon by respondents, all relate to the old form of policy, which has no time limitation for nonoccupancy, and the conclusion is reached that a recovery will be permitted unless it is proven that the insured premises have been entirely abandoned. Sec. 2581, volume above cited.

Respondents urge, in support of the judgment, that the terms of the policy should be construed most favorably to the insured. It is true that “such contracts are to be interpreted in the light of the fact that they are drawn by the insurer, and are rarely understood by the insured, to whom every rational indulgence should be given, and in whose favor the policy should be liberally construed.” 14 Cal.Jur., p. 444, sec. 24. But we do not see how there could be any misunderstanding concerning the import and meaning of the clause under discussion here. The ten-day limitation upon nonoccupancy was clearly set forth and easily comprehended. The rule sought to be invoked will not be applied to nullify an express and unequivocal provision, where the terms are plain and explicit and the meaning clear. 14 Cal.Jur., p. 446, see. 24.

Our conclusion is that as the undisputed evidence shows that the property was unoccupied for a period of thirteen days, the policy lapsed, and no recovery can be had thereunder.

The judgment is reversed, with directions to the trial court to enter judgment in favor of defendant.

TUTTLE, Justice.

We concur: PULLEN, P.J.; THOMPSON, J.