Ashworth v. Builders' Mutual Fire Insurance

112 Mass. 422

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1873
• Status: Published

Opinion

Colt, J.

The policy expressly declares upon its face that buildings unoccupied are not covered unless insured as such. This is descriptive of the subject matter of the insurance. It is a stipulation on the truth and fulfilment of which the contract depends, and the insurer has a right to insist on a strict compliance. It is decisive of this case; for assuming that the dwelling-house and barn, although situated at the end of a lane and half a mile distant from the road named in the policy, would come within the description of the property insured, yet the facts stated do not show an occupancy of either the house or barn within the meaning of the policy. Occupancy as applied to such buildings implies an actual use of the house as a dwelling place, and such use of the barn as is ordinarily incident to a barn belonging to an occupied house, or at least something more than a use of it for mere storage. The insurer has a right, by the terms of the policy, to the care and supervision which is involved in such an occupancy. Keith v. Quincy Mutual Ins. Co. 10 Allen, 228. Judgment on the verdict.