The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-02-07
TEST CASE
| DECIDED
Chinatown Suits
Will Now Be
Dropped.
FIRE INSURANCE
POLICIES VOID
Supreme Court Holds That Non.
Occupancy Clause InvaIi-
dated Claims.

The Supreme Court, Justice Gal
braith dissenting, yesterday reverse
the circuit court in the case of Cho
4 Look See VS.. Royal Insurance Co an,
ordered judgment for the defendant. A
a result of this decision some twent!
or thirty cases against various insur
ance companies for losses growing on
of the Chinatown plague fire may bt
dismissed-the cases now on the cir
cult court docket having been contin-
ued with the understanding that the
. Supreme Court ruling in the case de-
cided yesterday would be conclusive
The compliments in nearly all these
cases are Japs and Chinese and the in
| surance companies will not be liable
for the losses sustained by their policy
holders by reason of the big fire. The
case was before the Supreme Court on
three questions:
| '1-Whether the defendant is estopped
from setting up a forfeiture based on
| the fact that the buildings were on
| ground not owned by the insured in
| fee simple, and (2), that one of the
buildings was unoccupied at the time of
! the insurance and so remained for ten
days and more; and 90, whether the
wind or the order of the Board of
Health was the proximate cause of the
fire.
The jury which heard the case in
circuit court gave verdict for the de-
PENDANT. The Supreme Court considers
only the question Of non-occupancy,
which it declares voided the policy. In
concluding it's opinion the court says:
1t may seem hard TO hold that the |
breach of the condition to occupancy |
avoids the policy although it in fact had |
nothing to do with the Burning of the |
property. But such was the contract
made by the parties themselves. 1t was
competent for them to make such con-
tract and the court must give it effect.
The insurer might have extended the pc
Rod of non-occupancy if the insured had
applied for an extension, but whether it
shall now waive or rely on the breach is
not for the court to say. That the breach
may be relied on under the terms of the
policy although it did not contribute to
the loss is well settled. Imperial Fire
ms Co. VS.. Coos County, Isl L. S, 452.
Under the practice in this jurisdiction
judgment non obstante veredicto may be
for the defendant as well as for ;
the plaintiff and on the evidence as well ,
as the pleadings when the facts are
See Estate of Kamaka, .
Haw.. 245. This was done in an insur-
ance case in Lewis VS.. n. Y. Life ms.
Co.. Haw., 3O5. The facts are undisput-
I'd in the present case, so far as the ques
ton of occupancy is concerned. The trial
Judge should have directed a verdict for
the defendant. r
The exceptions are sustained. the yer. ,,
iict set aside, and the case remanded to
the Circuit Court with directions TO or
Ter judgment for the defendant non OBJ ;
tante veredicto. 8
THE SYLLABUS. :
The following is the syllabus written /;
BY Chief Justice Frear: 7
The words ITO be occupied in the de !,
cription of a building in insurance
'olicy do not constitute waiver of a
PROVISION that the building should not
emain unoccupied beyond limited pc
iod.
knowledge by the insurer at the in :
option of the contract that a building :
vas then unoccupied would estop ii from
forwards setting up the fact of nom
however long continued, If the
olicy forbade nonoccupancy altogether;
ut ii would not estop it from setting up
he fact that nonoccupancy continued be-
ond d limited period if the policy per-
litted nonoccupancy for that period.
A policy covering two buildings is in
VISIBLE and therefore void as to both
uidings if void as to one, when it is 4
wen for an indivisible consideration. and
hen by its terms the entire policy" is u
, be void in case of a breach of condi-
on as to "a building described therein.
nd when the buildings are so situated
,lth relation TO each other as to con-
utute practically one risk. and perhaps
would be void irrespective of such rel
tive situation
Chuer our practice Judgment non OBJ | 2
.aile may be ordered for the defendant -
5 well as for the plaintiff and on the
violence as Well as on the pleadfngs
hen the facts are undisputed.
DISSENTING OPINION. 2
Justice Galbraith. in his dissenting
pinion holds that the policy was not
oided, but that n-occupancy had c