Cuthrell v. Milwaukee Mechanics Ins. Co.

66 S.E.2d 649 (1951)

234 N.C. 137

CUTHRELL v. MILWAUKEE MECHANICS INS. CO. OF MILWAUKEE, WIS.

No. 26.

Supreme Court of North Carolina.

September 19, 1951.

*650 Wilson & Wilson, Elizabeth City, for defendant-appellant.

J. Henry LeRoy, Elizabeth City, for plaintiff-appellee.

*651 ERVIN, Justice.

Diligent search fails to uncover any North Carolina case involving the legality of a builder's risk clause similar to that in suit. Happily no occasion arises on the present record for us to determine the validity of the clause, or to make an independent adjudication as to its precise effect on the provisions of the standard policy form if it be valid. For the purpose of this particular decision only, we shall take it for granted without so adjudging that the builder's risk clause is valid and that the trial judge construed it aright in the court below. Inasmuch as the defendant admitted the issuance of the policy by it and the payment of the premium thereon by the plaintiff, we have grave misgivings as to the soundness of the ruling of the trial judge imposing on plaintiff the burden of showing that the insurance had not been terminated under the provisions of the builder's risk clause at the time of the loss. Notwithstanding this, however, we will assume without so deciding that such ruling was correct.

When it is interpreted in the light of these assumptions, the record presents for determination the question whether the evidence offered by the plaintiff at the trial is sufficient to support both of these propositions: (1) That the building had not been completed at the time of the fire; and (2) that the building had not been occupied either in whole or in part by the plaintiff or anyone acting for or under him at any time before its destruction.

The inquiry is raised by assignments of error based on the refusal of the trial judge to dismiss the action upon a compulsory nonsuit, or to grant the defendant's prayers for a directed verdict in its favor.

The terms "completed" and "occupied" are to be taken and understood in their plain and ordinary sense. Powers v. Travelers' Insurance Co., 186 N.C. 336, 119 S.E. 481.

We shall first consider whether the plaintiff's evidence is sufficient to show that the building had not been completed at the time of the fire. The word "completed" means brought to an end or to a final or intended condition. 15 C.J.S., Completed, page 665. A building is completed if, and only if, it has reached that stage in its construction when it can be put to the use for which it is intended. Daniel v. New Amsterdam Casualty Co., 221 N.C. 75, 18 S.E.2d 819; Property Owners' Materials Co. v. Byrne, Mo.App., 176 S.W.2d 650.

When the plaintiff's evidence on this aspect of the case is taken in the light most favorable to him, it tends to show the things stated in the next paragraph.

The building was designed for use for restaurant and recreation purposes. It was to contain a dining room with floor space for dancing; a picnic terrace with built-in tables for dining surmounted by a roof garden with a masonry floor for dancing; a kitchen; a storage room; and a bath house. At the time of the fire, the building as planned was incomplete in these respects: Braces, doors, inside molding, and partitions had not been placed in various parts of the structure; only two-thirds of the building had been covered by the first of two coats of paint; the bath house, the kitchen, the outside of the building, the picnic terrace, and the roof garden lacked electrical wiring; the cabinet work had not been done in the storage room; the cooking fixtures and plumbing "had not been set up" in the kitchen; the lockers, plumbing, and shower equipment had not been installed in the bath house; the walls of the picnic terrace had not been erected, and built-in tables had not been put there; the supports of the roof garden and the banister on the stairway leading to it had not been finished; and the masonry floor had not been laid on the roof garden.

Since this evidence indicates that at the time of the fire the plaintiff's building had not reached that stage in its construction when it could be put to the use for which it was intended, it is sufficient to establish the proposition that the building had not been completed at the time of its destruction.

The term "occupied" implies a continuing tenure for a period of greater or less duration, and does not embrace a mere transient or trivial use. Society of Cincinnati *652 v. Exeter, 92 N.H. 348, 31 A.2d 52; Lacy v. Green, 84 Pa. 514. A building is occupied when it is put to a practical and substantial use for the purpose for which it is designed. 67 C.J.S., Occupied, page 84.

When the plaintiff's testimony on this phase of the litigation is interpreted most favorably to him, it tends to show the matters set forth in the next paragraph.

The building was in process of construction at all times between January 26, 1950, when the policy was issued, and May 5, 1950, when the fire occurred. It was not used in any way during that entire period except for several hours on the night of April 29, 1950, when the plaintiff gratuitously permitted Russell Twiford, a college student, to conduct a dance, which was attended by approximately 200 persons, in the portion of the building designed for future use as the dining room. On that occasion the workmen cleared the floor for dancing by pushing "the lumber, the nail kegs, and different things" out of the room.

As this evidence is indicatory of the fact that the building was never put to anything more than a mere transient or trivial use, it is sufficient to show that the building had not been occupied either in whole or in part by the plaintiff or anyone acting for or under him at any time before the fire.

To be sure, the defendant offered or elicited other testimony in sharp conflict with that summarized above. Such other evidence must be ignored, however, in determining the legal sufficiency of the plaintiff's testimony to overcome a motion for a compulsory non-suit or to withstand a prayer or a directed verdict in defendant's favor. Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280.

The defendant's remaining assignments of error are untenable. None of them require discussion except those challenging the exclusion of the testimony of the defendant's witness, Mrs. Brantley McCoy, concerning a statement made to her by the defendant's agent, Jerry Wright, and the subsequent action taken by the Southern Loan and Insurance Company. This evidence was rightly rejected in the absence of any allegation that the policy had been canceled or terminated otherwise than by the completion or occupation of the building. Aetna Insurance Co. v. Kennedy, to Use of Bogash, 301 U.S. 389, 57 S. Ct. 809, 81 L. Ed. 1177.

The trial and judgment will be upheld, for there is in law

No error.

VALENTINE, J., took no part in the consideration or decision of this case.