Diligent search fails to uncover any North Carolina case involving tbe legality of a builder’s risk clause similar to that in suit-Happily no occasion arises on tbe present record for us to determine tbe validity of the clause, or to make an independent adjudication as to its precise effect on tbe provisions of tbe standard policy form if it be valid. For tbe purpose of this particular decision only, we shall take' it for granted without so adjudging that tbe builder’s risk clause is valid and that tbe trial judge construed it aright in tbe court below. Inasmuch as tbe defendant admitted tbe issuance of tbe policy by it and tbe payment of tbe premium thereon by tbe plaintiff, we have grave misgivings as to tbe soundness of tbe ruling of tbe trial judge imposing on plaintiff the burden of showing that tbe insurance bad not been terminated under tbe provisions of tbe builder’s risk clause at tbe time of tbe loss. Notwithstanding this, however, we will assume without so deciding that such, ruling was correct.
When it is interpreted in tbe light of these assumptions, tbe record presents for determination tbe question whether tbe evidence offered by the' plaintiff at tbe trial is sufficient to support both of these propositions r (1) That tbe building bad not been completed at tbe time of tbe fire; and (2) that tbe building bad not been occupied either in whole or in part, by tbe plaintiff or anyone acting for or under him at any time before its. destruction.
Tbe inquiry is raised by assignments of error based on tbe refusal of' tbe trial judge to dismiss tbe action upon a compulsory nonsuit, or tO‘ grant tbe defendant’s prayers for a directed verdict in its favor.
Tbe terms “completed” and “occupied” are to be taken and understood in their plain and ordinary sense. Crowell v. Insurance Co., 169 N.C. 35, 85 S.E. 37; Powers v. Insurance Co., 186 N.C. 336, 119 S.E. 481.
We shall first consider whether tbe plaintiff’s evidence is sufficient to-show that tbe building bad not been completed at tbe time of tbe fire.. Tbe word “completed” means brought to an end or to a final or intended condition. 15 C J.S. 665. A building is completed if, and only if, it has reached that stage in its construction when it can be put to tbe use for which it is intended. Daniel v. Casualty Co., 221 N.C. 75, 18 S.E. 2d *141819; Property Owners Materials Co. v. Byrne (Mo. App.), 176 S.W. 2d 650.
When tbe plaintiff’s evidence on this aspect of the ease 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 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. 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 26 January, 1950, when the policy was issued, and 5 May, 1950, when the fire occurred. It was not used in any way during that entire period except for several hours on the night of 29 April, 1950, when the plaintiff gratuitously permitted Bussell 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 *142occasion tbe workmen cleared tbe floor for dancing by pushing “tbe lumber, tbe nail kegs, and different things” out of tbe room.
As this evidence is indicatory of tbe fact that tbe building was never put to anything more than a mere transient or trivial use, it is sufficient to show that tbe building bad not been occupied either in whole or in part by tbe plaintiff or anyone acting for or under him at any time before tbe fire.
To be sure, tbe defendant offered or elicited other testimony in sharp conflict with that summarized above. Such other evidence must be ignored, however, in determining tbe legal sufficiency of tbe plaintiff’s testimony to overcome a motion for a compulsory nonsuit or to withstand a prayer for 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 tbe testimony of the defendant’s witness, Mrs. Brantley McCoy, concerning a statement made to her by tbe defendant’s agent, Jerry Wright, and tbe subsequent action taken by tbe Southern Loan and Insurance Company. This evidence was rightly rejected in tbe absence of any allegation that tbe policy bad been canceled or terminated otherwise than by the completion or occupation of tbe building. Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 51 S. Ct. 809, 81 L. Ed. 1177.
Tbe trial and judgment will be upheld, for there is in law
No error.
Valentine, J., took no part in tbe consideration or decision of this ease.