Elliott v. Farmers' Ins. Co.
| Decision Date | 21 May 1901 |
| Parties | ELLIOTT v. FARMERS' INS. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Muscatine county; A. J. House, Judge.
Action upon a policy of fire insurance. There was a trial to court, a jury being waived. From a judgment against plaintiff for costs, he appeals. Affirmed.E. C. Nichols, E. M. Warner, and E. F. Richman, for appellant.
Deacon & Good and Titus & Jackson, for appellee.
The policy covered a barn in West Liberty, which the application states was occupied by plaintiff. One condition of the policy was as follows: “This policy shall become void in each of the following instances, unless noted in said application, or consented to by the secretary of the company in writing hereon, viz.: If the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof; or if the assured shall remove from the premises herein described, or if the above-mentioned premises be occupied by tenants, or be used for any other purpose than is mentioned in the application; or the risk be increased by the erection or occupation of adjacent buildings (the erection of ordinary outbuildings not considered), or by any means whatever; or if mechanics be employed on the premises, except to make ordinary alterations and repairs, and then not to exceed five days at any one time; or if the property be sold or transferred, or any change take place in the title or possession thereof (except in case of succession by reason of death of the assured), whether by legal process or judicial decree or voluntary transfer.” At the time of the fire the premises were in the possession of a tenant, to whom they had been previously leased. Conditions of this kind against a change of possession or occupancy are uniformly enforced by the courts. Jones v. Insurance Co., 97 Iowa, 275, 66 N. W. 169;Oldham v. Insurance Co., 90 Iowa, 225, 57 N. W. 861;Carey v. Insurance Co. (Wis.) 54 N. W. 18. Under these authorities,--and many more to the same effect might be cited,--the policy became void immediately upon the change of possession.
Evidence was introduced by plaintiff to show the barn was used by the tenant for the same purpose to which plaintiff devoted it, and the argument is made that the risk of fire under the tenant was no greater than while plaintiff held possession. But the condition against change of possession is not made dependent on the fact of increase of risk. The parties had a right to make this stipulation regardless of the effect of a change of possession, and as was said in Meadows v. Insurance Co., 62 Iowa, 387, 17 N. W. 600: “We cannot make a new contract for them, nor refuse to enforce the contract they made for themselves.” We do not, however, wish to be understood as saying...
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