McMurray v. Capital Ins. Co.

• Decision Date: 31 January 1893
• Citation: 54 N.W. 354,87 Iowa 453
• Parties: MCMURRAY v. CAPITAL INS. CO.
• Court: Iowa Supreme Court

87 Iowa 453

54 N.W. 354

MCMURRAY

v.CAPITAL INS. CO.

Supreme Court of Iowa.

Jan. 31, 1893.

Appeal from district court, Kossuth county; George H. Carr, Judge.

Action on a policy of fire insurance. There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendant appeals.Read & Read, for appellant.

George E. Clarke, for appellee.

ROBINSON, C. J.

In February, 1889, defendant issued to plaintiff a policy insuring him against loss or damage by fire to the amount of $500 on his dwelling house, situated in Algona, and $300 on his furniture and other household property contained in the house. In August, 1890, during the term covered by the policy, the house and most of the personal property were destroyed by fire. The plaintiff demands judgment on account thereof for $800 and interest. The defendant denies liability for the loss on the alleged ground that conditions of the policy were violated by plaintiff. The verdict was for the sum of $800, and judgment was rendered for that amount and costs.

1. The policy contained a warranty on the part of the assured that he was the sole and unconditional owner of the property covered by the policy, and provided that any breach of the warranties therein contained should render the policy void. The plaintiff was not the unconditional owner of the real estate, but held therefor only a contract for a deed. The contract of insurance was made on the part of defendant by its recording agents at Algona, Hoxie & Reaver, and they issued the policy. When the contract was made plaintiff fully informed Mr. Hoxie, one of the agents, of the character of his title; and it was fully understood by the agents, and their daily report to the defendant showed the facts in regard to it. Yet, with knowledge of such facts, the agents issued the policy in its present form, and the defendant accepted the premium, and permitted the policy to stand. The failure of the policy to state correctly the title of plaintiff was due wholly to the fault of defendant, and it will not be permitted to escape liability on account of it. See Jemison v. Insurance Co., (Iowa,) 52 N. W. Rep. 186, and the cases therein cited.

2. The policy also provided that the insured premises “shall not become vacant or unoccupied, or so remain for more than five consecutive days.” The house was the place of residence of plaintiff and his family. At the time of the fire he had been in Clear Lake for several months, and his wife and children were visiting her parents in Humboldt county, where she had been about eight days. When she went away she left the key of the house with a sister, and instructed her to take care of the house, and have her sons take care of a cow and other things about the place. The household goods were left in the house. During the absence of Mrs. Murray, by her direction, a nephew visited the place daily to milk the cow, and take care of the garden. He was in the house three times, about five minutes each time. A day or two before the fire the sister opened the house, swept and dusted, and prepared the beds for use. The absence of the family of plaintiff was for temporary purposes only. He was working at his trade. His wife had fixed no definite time for her return, but was staying away only to finish her visit, which was not intended to be long. There was no intent to abandon the house as a home.

The appellant contends that as the family had been away from the house more than five days, during which time no one had occupied it, the house was vacant and unoccupied, within the meaning of the policy, for more than five consecutive days. The policy should be so construed as to carry into effect the intention of the parties if practicable. It will be presumed that the policy was not designed to impose any unreasonable conditions or restrictions. If a dwelling house is habitually occupied by human beings as a place of residence, it does not become vacant and unoccupied, within the ordinary meaning of those terms, when the occupants are temporarily absent.

In Dennison v. Insurance Co., 52 Iowa, 457, 3 N. W. Rep. 500, it was said, in effect, that if the occupant of an insured house should close it for a visit, and not occupy it, but be absent from it not more than a reasonable time, it would not be vacant, within the meaning of a clause of the policy which provided that if it should become vacant or unoccupied, and so remain, without notice to and consent of the company, in writing, then the policy should be void. The facts in that case, however, were that a tenant of the insured house had left it, and that it remained vacant 17...