Dennison v. The Phoenix Insurance Co

• Decision Date: 05 December 1879
• Citation: 3 N.W. 500,52 Iowa 457
• Parties: DENNISON v. THE PHOENIX INSURANCE CO
• Court: Iowa Supreme Court

3 N.W. 500

52 Iowa 457

DENNISON v. THE PHOENIX INSURANCE CO

Supreme Court of Iowa, Des Moines

December 5, 1879

Appeal from Woodbury Circuit Court.

ACTION upon a fire insurance policy. At the time the insurance was effected the building insured was occupied by a tenant of the plaintiff. When it was burned it was not occupied by any one and had been vacant for some seventeen days. The property was situated in Sioux City, and had been used as a boarding house and hotel. The plaintiff resided some fourteen miles from Sioux City. There was a trial by jury and a verdict and judgment for the plaintiff. Defendant appeals.

REVERSED.

E. E Lewis and M. B. Davis, for appellant.

Joy & Wright, for appellee.

OPINION

ROTHROCK, J.

The policy contains the following clause or stipulation:

"If the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain, without notice to, and consent of, this company in writing, or the risk be increased by the erection of neighboring buildings, or by any means whatever within the control of the assured, without the consent of this company indorsed hereon * * then, and in every such case, this policy is void."

The court instructed the jury to the effect that it was not every vacation of the building which would render the policy void, but that to avoid the policy the building must have remained vacant for such an unreasonable length of time as to materially increase the risk, and that what would be an unreasonable length of time was a question for the jury.

The court also, upon its own motion, submitted to the jury special interrogatories, which, with the answers thereto, are as follows:

"1. Was the house vacant or unoccupied at the time of fire without notice to the defendant?

"Ans. Yes.

"2. How long had the house been vacant or unoccupied at time of fire?

"Ans. About seventeen days.

"3. Was the risk of fire increased by reason of the house being vacant or unoccupied?

"Ans. No.

"4. Was the house, under the circumstances, vacant or unoccupied for an unreasonable length of time?

"Ans. No."

It is urged by the plaintiff that the defendant did not take the proper exceptions to the instructions of the court, and that the abstract does not purport to contain all the evidence.

This may be conceded, and yet the defendant asked the court to instruct the jury to the effect that if they found from the evidence that the premises were vacant and unoccupied at the time of the fire, without notice to the defendant, the plaintiff could not recover. These instructions were refused, and proper exceptions were taken. Although we may not have all the evidence in the record before us, the appellant insists that it contains all upon the question as to the vacation of the building. There certainly was evidence tending to show, and the jury found, that the tenant of the plaintiff moved out of the building seventeen days before the fire, and it remained tenantless and unoccupied until it was destroyed.

We think the instructions asked by defendant should have been given, and that the cause was submitted to the jury upon a wrong construction of the policy. Counsel for appellee ingeniously argue the case upon the theory that the clause above quoted, properly construed, means if the premises became vacant and so remained, by some means not within the control of the insured, then the policy is not avoided by such vacation, and it is said the vacation of the building occurred without plaintiff's knowledge, and when he had reason to expect that the tenant would remain,...