The Republican journal., 1905-11-23
FROM THE LAW COURT.
Rescript in Waldo County Case Relating to
Insurance Matters.

Rescript in Waldo County Case Relating t
Insurance Matters.
Tilest0n Wadlin, clerk of courts, ha.
received a rescript from the law court in
the Waldo county case of Willis j. KnOwl.
ton versus Patrons AndrOscOggin Mutual
fire Insurance Co.
The rescript, drawn by Justice White.
mouse, is as follows:
This is an action upon policy of fire in
surance in the standard form, issued by the
defendant company upon the buildings OF
the plaintiff, situated in Montvile
The legislative enactment of 1895, chap.
1S, prescribed form for a standard policy
of insurance, Ohibited insurance com
panies doing business in this State from is
/ suing policies of fire insurance in any other
form and by section of the act expressly
repealed all provisions of law inconsistent
with the terms of the policy thus enacted.
This standard policy, by its terms, is de-
clared void if the premises become vacant
by the removal of the owner or occupant.
and so remain vacant for more than 80 days,
without the assent in writing or in print of
the company, irrespective of the question
whether such vacancy materially increases
! the risk or not. This provision is clearly
| inconsistent with the statute of 1883, de-
| claring that change in the occupation of
| the property should not affect the policy
unless it materially increases the risk
The earlier enactment of 1883 was, there
fore expressly repealed by the terms of
section three of chapter 1879 of the laws of
1895.
Nor is the question of material increase
of the risk from vacancy or nOn-occupancy
open under the provisions of the standard
policy itself as prescribed by Chapter IS of
the laws of 1895
Furthermore, in the case at bar, these
provisions of the standard policy relating
4 10 Won ,>ff ha 60
by the separate slip or rider attached to the
policy according to the general authority
therefor given by section of Chapter 40,
R. S. By this modified contract the parties
definitely stipulated that the policy should
be rendered void for vacancy or non-occu-
pancy continued for more than 10 DAYS
This is the contract which the parties them-
selves made and the court is not authorized
to substitute, for it another and Il different
contract which the parties did not make
In the case at bar the property insured,
a set of connected farm buildings situated
the plaintiff resided, was destroyed by fire
April 10, 1908. The house was not occupied
by the plaintiff himself, but had been oc-
cupied by his tenant, Albert Turner and
his family. A stock of cattle and also some
hay and farming tools, the property of the
plalntl1f,, were kept IN the barn and cared
for by Turner. On the 2Sth day of March
preceding the fire, Turner hired tenement
in Liberty Village and removed from the
house in question sufficient furniture and
goods to furnish it. On the fourth day of
April following, his wife and family moved
into the tenement in Liberty Village, but
he continued to pay rent for the PLAINTIFF
house up to the time of the fire. He con-
tinued to work upon the farm pleasant
days, leaving his family in the Village in
the morning, taking his dinner with him to
the farm, and returning to his family in the
Village at night. Rainy days and Sundays,
he was not at the farm On these days the
stock was cared for by neighbor, one
Weed. Turner was not at the farm on the
day of the fire, Weed caring for the stock on
that day. He intended to return to the
knowlton place with his family in about
two months
Upon these facts the plaintiffs buildings
insured by the policy in suit, must be deem
ed to have become ''personally unoccuped
without the consent of the company, for
more than 10 days Immediately preceding
their destruction by fire.
1t is finally commended in behalf of the
plaintiff, however, that the acceptance by
the company, of the plaintiffs proportional
part of the assessment of July so, 1908,
operated as waiver of the forfeiture re-
Sulting from such non-occupancy.
In two previous decisions of this court
questions of waiver were raised precisely
analogous to that in the case at bar and
contention.
In each of these cases the provision of
the charter of the company relating to mem
bership, the obligation of every member to
pay his proportion of all losses happening
during his connection with the Company,
and the existence of the lien on the build
ings for then security of the deposit note
were in effect precisely indenticaI with the
statutory provisions in force at the date of
the plaintiffs policy in suit.
decisive of the case at bar. The cases cited
by the defendant are clearly distngushable
from it.
1t is accordingly the opinion of the court
that the forfeiture resulting from the non
occupancy of the PLAINTIFFS buildings, was
not waived by the Company in accepting
payment of an assessment upon the plain
ttf's premium note under the circumstances
stated, and that the entry must be.
Judgment for the Defendant.