Opinion
Decided December 1, 1936.
ASSUMPSIT, upon a policy of fire insurance. Trial by jury. At the close of the plaintiff's evidence and subject to the plaintiff's exception, a nonsuit was ordered "on the defendant's agreement that if the plaintiff's exception is sustained, the plaintiff is to have judgment for $500.00 with interest from October 17, 1933."
The policy contained a provision that it should be void if the insured premises should "become vacant by the removal of the owner or occupant and so remain vacant for more than thirty days" without the consent of the insurer. The defendant in its plea alleged a breach of this condition, and the issue of fact thus raised was the only one in controversy at the trial. The plaintiff testified that after the policy was issued there was never "a time that thirty days went by" in which he "didn't occupy, actually occupy the premises" and that he was there "from two and three times a week." Transferred by Sawyer, C. J.
William H. Sleeper, for the plaintiff.
Batchelder Wheeler, for the defendant.
This case is governed by the principles stated in Trepanier v. Insurance Co., ante, 118, "Whether the plaintiff had been living at the premises for any part of the time during the thirty days immediately preceding the fire, is the issue." Ib. The testimony of the plaintiff required the submission of this issue to the jury. The defendant argues that "the term `occupancy' means a practical use of the premises for the purposes intended and occupancy that measurably lessens the vigilance and care that would be incident to its use for such purpose, is not an occupancy within the meaning of the term as it is employed." This contention is inconsistent with the above decision and is otherwise without merit. In accordance with the stipulation of the defendant, there must be
Judgment for the plaintiff.