courts, however, have held that any user, if it substantially increases the hazard, is a violation of the policy (41). § 73. Manufacturing establishments. There is a further very important qualification of this clause to be noted. It may best be illustrated by a statement of the leading case on this point. A printing establishment took out a policy of insurance upon its "printing and book materials, stock paper and plates," and in the written part of the policy, designating the property insured, were the further words, "privileged for a printing office, bindery, and book store." The policy also obtained a provision substantially like the one under consideration, providing that it should be void if certain hazardous goods were kept or stored on the premises, and among the hazardous goods so mentioned was "camphene". The insured had to keep camphene on the premises for use in connection with the business. After the destruction of the premises by fire, an action was brought against the insurance company, and it set up as a defense the violation of the clause against storing or keeping camphene. The court held that this defense was not available, saying "the underwriters must be deemed to have been acquainted with the business and the materials ordinarily and necessarily used by the trade for prosecuting it. In issuing the policy they must be deemed to have intended to include all such materials in their risk. In construing the policy, it is to be treated as if the article of camphene for the use to which it was in fact applied had been enumerated with the articles covered by the policy. When the insurance (41) Wheeler v. Insurance Co., 62 N. H. 326. is directly upon the stock in trade to hold that a general printed prohibition (contained in every policy of insurance) against keeping or using it, unless permission be especially given and endorsed upon the policy, would have the effect to nullify its direct and positive stipulations, would be preposterous. If the article was necessarily and ordinarily used in the business, it is included in the term 'stock' used in the policy, [and] it is as clearly within the risk assumed by the defendant as if written in at length" (42). This doctrine is clearly established and universally followed. § 74. Stocks of merchandise. The same principle is generally applied to insurance on stores and stocks of merchandie, although the courts are not unanimous on this point (43). The clause in parentheses in the New York Standard policy regarding trade customs has no effect at all, because the effect of insuring a business or a stock in trade is just the same as though the company had in so many words written into the policy a permission to use the things that in the printed part it forbids the using of, and obviously, under these circumstances, the written part of the policy, as being specifically applicable to the case in hand would overcome the language of the printed part of the policy (44). § 75. Households. Whether the same principle is to be applied to household goods is not so clear. It is arguable that if the company, in that part of the policy which is written in, insures household goods or insures a dwelling (42) Harper v. Insurance Co., 17 N. Y. 194. (43) McComber v. Insurance Co., 7 Gray (Mass.) 257. (44) Faust v. Insurance Co., 91 Wis. 158. house, that it must be taken to have impliedly consented that there shall be included in the subject matter of the insurance whatever is properly found in a dwelling house, even though among those things are found such articles as are forbidden by the printed part of the policy; and such has been held (45). On the other hand, it may be said that, while it is a matter of business necessity that a printing establishment should have camphene, it is not a matter of necessity but merely of convenience that a household should have gasoline, for example, and that the cases are to be distinguished for that reason. Consequently, it has also been held that a householder keeping prohibited articles was not protected by the mere fact that he had his household goods, as such, insured (46). The word "allowed", whether used in connection with manufacturing or mercantile establishments or households, adds nothing to the language of the policy. It is construed to mean only "allowed to be kept or used" (47), on the general principle that the court will not make a forfeiture clause any broader than it has to. It is well settled that if the articles specified are kept or used in a permanent way, it is no defense to the insured landlord that this was done by his tenant without his consent (48). § 76. Vacancy and unoccupancy. The New York Standard provides that it shall be void, if a building insured shall be or become vacant or unoccupied and so remain for ten days" (49). It must be noted that the (45) Insurance Co. v. Greene, 16 Tex. Civ. App. 531. (46) McFarland v. Insurance Co., 46 Minn. 519. (47) Insurance Co. v. Fischer, 92 Fed. 500. (48) Insurance Co. v. Norwaysz, 104 Ill. App. 390. (49) App. E, 1. 71. two words are in the alternative and that they have different meanings. These words have been thus defined by one court in the case of a dwelling house: "The different things that are receptive of the epithets 'vacant' and 'unoccupied' are different in their capability and susceptibility of being filled or occupied. Some cannot have one of those terms applicable to them, without the other at the same time being also applicable. Some, from the nature of the use which goes with the occupation of them, may not be vacant, and yet they will, in any just use of the term as applicable to them, be unoccupied. A dwelling house is chiefly designed for the abode of mankind. For the comfort of the dwellers in it, many kinds of chattel property are gathered in it. So that, in the use of it, it is a place of deposit of things inanimate and a place of resort and tarrying of beings animate. With those animate far away from it, but with those inanimate still in it, it we'd not be vacant, for it would not be empty and void. And, as a possible case, with all inanimate things taken out, but with those animate still remaining in it, it would not be unoccupied, for it would still be used for shelter and repose" (50). § 77. Same: Permanence of condition. As with "increase of hazard", and "keeping and using" prohibited articles, the courts have held that there is no violation of the section now under discussion, unless there is a certain degree of permanency about the vacancy or unoccupancy. Mere temporary absence, though for more than ten days, is not a violation of the policy. Thus, in one case, the (50) Herrman v. Insurance Co., 85 N. Y. 162. insured and his wife left their home and went to a neighboring city in order that the wife might undergo medical treatment. They were absent for eight months. The furniture however remained in the house, the husband was out there at frequent intervals, and during some of the time slept there. The court held that the house was not vacant or unoccupied within the meaning of the policy (51). So, where the tenant of the insured had gone out of the house, and the insured had moved part of his own furniture in at once and had intended to get in the remainder, but was not yet sleeping in the house, and it was burned during that situation it was held not to be vacant or unoccupied within the meaning of the policy (52). So, where a saw mill was insured, and, because of the breaking of a saw and the water power being low, the mill was not used for over ten days, although all the machinery was there and there was lumber there to be sawed as soon as they could get the machinery in and get sufficient power, it was held that the clause against vacancy or unoccupancy had not been broken (53). So, where an ice house was insured and there was no ice in it during October, the court held that the policy must be construed in the light of the character of the structure insured, and that the clause under consideration had not in that case been violated (54). On the other hand, a mere colorable attempt to use the premises will not be sufficient to keep the policy alive, if the house is in fact abandoned as a (51) Insurance Co. v. Peyson, 54 Neb. 495. (52) (53) (54) Shackleton v. Sun Fire Office, 55 Mich. 288. |