Davis v. W. Home Ins. Co.

• Decision Date: 28 October 1890
• Citation: 81 Iowa 496,46 N.W. 1073
• Parties: DAVIS v. WESTERN HOME INS. CO.
• Court: Iowa Supreme Court

81 Iowa 496

46 N.W. 1073

DAVIS

v.WESTERN HOME INS. CO.

Supreme Court of Iowa.

Oct. 28, 1890.

Appeal from district court, Cass county; H. E. DEEMER, Judge.

Action on a policy of insurance to recover for the loss sustained by plaintiff, by reason of the destruction by fire of the property insured. There was a judgment upon a verdict for plaintiff. Defendant appeals.Cummins & Wright and Phelps & Temple, for appellant.

Willard & Willard, for appellee.

BECK, J.

1. The policy upon which the action is brought covered ear corn contained in two cribs. Upon one crib the amount insured was $1,665; on the other, $335. The crib first named was burned, and the corn contained in it destroyed. The plaintiff seeks, in this action, to recover for this loss. The policy contains a condition in the following language: “The policy shall be void and of no effect if, without permission therefor in writing hereon, the assured shall now have, and hereafter make or procure, any other contract of insurance on property covered in whole or in part by this policy, * * * or if there be any change in the exposure by the erection or occupation of adjacent buildings, or by any means whatever in the control or know ledge of the assured. * * *” The evidence tended to show that the assured brought, or caused or permitted to be brought and operated, a sheller propelled by steam, and the engine and boiler furnishing the power, quite near the corncrib, and that the fire originated from, and was caused by, the use of such engine in dangerous proximity to the corn-crib. Thereupon the court below gave to the jury the following instruction: “It is provided in the policy that ‘this policy shall be void and of no effect if, without permission therefor in writing hereon, there be any change in the exposure, by the erection or occupation of adjacent buildings, or by any means whatever within the control and knowledge of the assured.’ Now, the construction of this clause is for the court to determine, and the effect of it is that the exposure referred to therein, in order to avoid the policy, must be by the erection or occupancy of an adjacent building, or by some means of like character; that is, some permanent erection or structure must have been placed in proximity to the crib which contained the corn, or the occupancy of some building standing at the time the policy was issued, adjacent to the said crib, must have been changed so as to increase the hazard, in order to come within the terms of this provision. And the use of a steam-power to run a sheller in shelling the said corn would not come within the prohibitory clause of the policy referred to in these instructions.”

2. In our opinion the court below erred in this instruction. It is plain that it cannot bear...