Foley v. Sonoma County Farmers' Mutual Fire Insurance

TRAYNOR, J.

Defendant appeals from a judgment of the trial court in favor of plaintiff, Ellen Foley, in an action upon a policy of fire insurance.

[234]

The defendant issued to Ellen Foley a “California Standard Form of County Fire Insurance Policy” covering a dwelling house in Sonoma County and furniture, family stores, wearing apparel and like articles within the dwelling house for the period from October 17, 1933 to October 17, 1936. The policy contains a clause that: “Unless otherwise provided by agreement indorsed hereon, or added hereto this company shall not be liable for loss or damage occurring . . . while a building herein described, whether intended for occupation by owner or tenant is vacant or unoccupied beyond the period of ten consecutive days.” The present ease concerns only the insurance on the furniture and other described articles since the policy, so far as it concerned the house, was assigned with the consent of the defendant to the vendees to whom plaintiffs on April 20, 1934, conveyed the real property under an agreement by which the plaintiffs were to occupy the house for a period of three and one-half years without the payment of rent.

On October 15, 1934, the plaintiffs left the premises with the intention of remaining away three or four days in order to visit a daughter in Pittsburg, California. The plaintiffs there decided to visit another daughter in Stockton, California. On the evening of October 28, 1934, while they were still at Stockton, the dwelling house and the personal property contained therein were destroyed by a fire of unknown origin.

It was stipulated that there was no notice to, or consent by, the defendant, concerning the plaintiffs’ departure from the premises. At the time of the fire, the plaintiffs had been away from the premises from the fifteenth to the twenty-eighth of October, a period of thirteen days. Defendant contends that their absence during that period rendered the dwelling unoccupied and served to suspend the operation of the policy under the clause relieving the defendant of liability in the event the dwelling is vacant or unoccupied for more than ten consecutive days.

A dwelling may be unoccupied even though it is not vacant; the terms are neither synonymous nor complementary. They are used in the present clause as alternatives and not in conjunction. The term “vacant” is associated with removal of inanimate objects from a dwelling; the term ‘ ‘ unoccupied” is associated with the abandonment of that dwelling as a customary abode by its former occupants. (See