Belgrade v. National American Insurance

FORD, J.

As a result of vandalism, the plaintiffs suffered damages in an amount in excess of $9,000 to a residence and the carpets and drapes therein. They sought recovery for their loss from the defendant insurance company under the terms of a policy of insurance. The amount of loss was not in dispute but the defendant denied liability because of a provision of the policy as to the effect of a vacancy of the property. The trial court rendered judgment for the defendant and the plaintiffs have appealed therefrom.

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In the policy it was provided that, with respect to the property covered, the appellants were insured against all loss caused by vandalism and malicious mischief. However, it was further provided that there should be no liability with respect to that peril “if the described property has been vacant beyond a period of thirty (30) consecutive days immediately preceding the loss.” Vacancy and unoccupaney were defined in the policy as follows: “A building intended for residence by human beings shall be deemed to be vacant within the meaning of this policy unless such building contains the furnishings ordinarily contained therein to enable the use of said building for the purpose for which it is adapted; and shall be deemed to be unoccupied (but not vacant) if such building contains the furnishings ordinarily contained therein to enable the use of said building for the

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purpose for which it is adapted, but no lawful occupant is residing therein.”

The only testimony offered was that of Jules Belgrade, one of the plaintiffs. He and his brother, the other plaintiff, acquired the property, which was residential in nature, as the result of a foreclosure of an encumbrance thereon. The house was a large two-story structure containing about 10 rooms. The former owner moved out about June 27, 1958. Thereafter the plaintiffs were there every day prior to the vandalism which occurred on August 24, their purpose being to “keep it available for prospective customers” who might buy or rent it. The initial price asked for the property was $79,500. A “For Sale” sign was placed in front of the house. When the Belgrades took possession, there were expensive drapes and carpeting in the house. The items of personal property which they had in the house between June 29, 1958, and August 24, 1958, were described by Mr. Belgrade as follows: “. . . [an aluminum] chaise lounge with a mattress [which was sometimes placed in the living room and sometimes taken upstairs] . . . two inner spring mattresses [which rested on the floor] used as beds . . . sheets, pillow cases and pillows ... six blankets . . . two suits, shirts, underwear, bath towels, hand towels . . . toiletries . . . toothbrushes and dental floss and soap and everything that pertains to washing . . . breakfast room table and four chairs ... a kitchen stool ... a captain’s chair ... a folding chair . . . pots, pans and an electric hot plate ... a freezer unit in the soda fountain, the built-in soda fountain [in the playroom on the second floor] . . . silverware and plates and cups and glasses and dishes [which were used several times a day]. ’ ’ Additional items of property on the premises were a statue, a radio, a vacuum cleaner, dust mops, brooms, brushes and garden implements. All utilities, including telephones, were connected.