(dissenting). In this state the form of a fire insurance policy is prescribed by statute. Section 6625, Comp. Laws 1913, provides that “no fire insurance company, corporation or association, their officers or agents, shall make, issue, use, or deliver for use any insurance policy or renewal of any fire insurance policy on property in this state other than such as shall conform in all particulars as to . . . context, provisions, agreements and conditions with the printed form of contract or policy heretofore filed in the office of the commissioner of insurance as a standard policy for this state. . . .” The insurance policy in controversy conformed to the contract so prescribed. It contained the following provisions: “This entire policy shall be void ... if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” The undisputed evidence in this case is to the effect that the plaintiff on September 3, 1918, leased the premises .in controversy to a man named Busholl. The only oecupancy of the premises by anyone subsequent to that date was by Busholl. If the premises were occupied at the time of the fire, it was by Busholl and no one else. Busholl testified that shortly after making the contract he moved on the land and took along with him some clothes, a bed, a table, a stove, and some chairs. He went to work plowing and seeding rye. He was assisted in this work by one Sagmiller. After the rye was seeded, he not only left the place, but moved out all of his belongings. A reasonable inference from the testimony is that he moved out sometime in October. The fire did not occur until December 13th. Busholl, however, testified that after he moved away he came back and slept in the house two nights, — the first night about four weeks, and the second night two days, before the fire occurred. I will let Busholl tell his own story with reference to his occupancy of the premises.
Direct Examination.
Q. Did you lose any stuff in the fire there ?
A. No.
Q. Any of your stuff bum up %
A. No.
*610Q. Tour bed ?
A. No.
Q. That was out already ?
A. Yes, sir.
Cross-Examination.
Q. How many days did you sleep in the house before the two days before the fire ?
A. I slept one night two days before the house burned down.
Q. When was the next time before that that you slept in the house ? A. I was there four weeks before.
Q. You moved to Sagmiller’s ?
A. Yes, sir.
Q. You took your furniture and bedding over to Sagmiller’s ?
A. Yes, sir.
Q. Then you went over to work in a coal mine?
A. Working and digging my own coal.
Q. But after you finished plowing and sowing the rye you were there one night ?
A. One night until two days before the house burned down.
Q. You had taken out all you stuff, so that you did not lose anything ?
A. No.
Q. You had taken your bedding, clothes, and everything away, had you not ?
A. Yes, sir.
Q. You did not lose anything in the fire?
A. No.
Q. You were not on the place except that one night at any time from the time you finished sowing the rye until that one night you testified to, two days before the fire ?
A. Yes, sir.
Q. You moved all your goods and belongings out of the house, did you not?
A. Yes, sir.
*611Q. Yon stayed away from the time yon finished sowing the rye, and were there only one night between .that time and the night of the fire ?
A. Yes, sir.
On his redirect examination he testified that he intended to come back to the premises after he got through working at the mine; also that there was a bed, spring, and mattress and bedclothes in the house the night that he claims to have slept there two days before the fire. From this testimony, therefore, it appears that Busholl moved away from the premises when he was through seeding rye; that he also removed all of his belongings, including the stove, and had no property whatever in the house at the time the fire occurred. It also appears that after he had gone over to Sagmiller’s to work in the coal mine he came back and slept in the house one night four weeks before the fire occurred, and again one night two days before the fire occurred.
The defendant called as a witness one Gertz, who lived about three quarters of a mile from the building at the time of the fire. Gertz testified that he got his mail almost daily from the mail box-at the crossroads near the building; that this was so close to the building that he could, and did, see the building and premises every day during the months preceding the fire. He further testified:
“During October, November, and December, 1918, I was down to the building during all these months almost daily for my mail. I came and sometimes waited for the mailman, and if it was cold I would stand out of the wind. I could see into the rooms through the windows of the house, and I looked in it. The premises were not occupied by anybody during the months of November and December, 1918. There were no bedclothes, stoves, dishes, or anything of that character in there.”
This testimony was corroborated by three of Gertz’s neighbors. They all testified that during November and December they saw no lights at night, no smoke from the chimney, no stock on the premises, and in fact no evidence whatever of occupancy; The only evidence adduced by the plaintiff on the question of vacancy and nonoecupancy was the testimony of Busholl, which has already been noted. And, according to his testimony, he had moved away from the premises at least a month before the fire occurred.
The majority opinion is predicated upon the theory that the pro*612vision in the policy was one against “vacancy” alone. It will be noted, however, that the provision covers both “vacancy” and “nonoccupancy.” it says: “This entire policy shall be void if a building herein described be or become vacant or unoccupied and so remain for ten days.” “Vacant” and “unoccupied” are by no means synonymous. “Vacancy” has been said to have the signification of “uninhabited” and to be non-occupancy “for any purpose.” Dohlantry v. Blue Mounds Fire & Lightning Ins. Co. 83 Wis. 181, 53 N. W. 448; Pabst Brewing Co. v. Union Ins. Co. 63 Mo. App. 663. “Occupancy” of a dwelling has been defined to be “the living in” a house. Hoover v. Mercantile Town Mut. Ins. Co. 93 Mo. App. 111, 69 S. W. 42; Stoltenberg v. Continental Ins. Co. 106 Iowa, 565, 68 Am. St. Rep. 323, 76 N. W. 835.
Cyc. says: “As in general, the term ‘vacant’ means empty of everything, while ‘unoccupied’ means that no actual use is being made of the premises, by anyone corporally present or in possession, a condition against nonoccupancy is much more easily broken than is a condition against vacancy. Historically it appears that the insurer has gradually increased the severity of such provisions. Originally the insurer relied upon an alleged implied agreement that the premises insured should remain in the same condition as when the policy was issued; then, upon the theory that a description in prcesenti should be construed as a promissory warranty. It was next asserted that vacancy was prohibited under a clause of the policy providing that the contract should be void in case the risk was increased; then ‘vacancy’ was expressly prohibited in terms of various character. Next the word ‘unoccupied’ was linked to the term ‘vacant’ as denoting a state prohibited; and finally the modern and the standard policy provides that the contract of insurance shall terminate if the building insured shall ‘become vacant or unoccupied.’ ” 19 Cyc. 129.
Cyc. further says: “A mere occasional sleeping therein is not enough to constitute of itself occupancy as a dwelling, even though it be by the owner.” 19 Cyc. 731.
The court, in its instructions to the jury, said: “If you find that the tenant vacated the premises with the intention of vacating it permanently or for a period of more than ten days, and that that he thereafter acted upon his intention and did vacate, then you will find for the defendant. If, on the other hand, you find that he did not intend *613to vacate the premises permanently, but that bis intentions were to only absent bimself temporarily and later to return, then you may find for tbe plaintiff in tbis case.”
Tbis instruction is, apparently, predicated upon tbe same erroneous theory as tbe majority opinion; im,} that tbe provision in .question covered “vacancy” alone. Tbe instruction in effect denied to tbe. plaintiff tbe benefit of tbe provision against “nonoccupancy.” It is difficult to see where there was any room for tbe inference that tbe premises were “occupied” after Busholl left and took all bis effects out of tbe bouse. But in any' view of tbe case tbe defendant was at least entitled to have tbe question of “occupancy” submitted to tbe jury.
Biedzell, J., concurs.