Roach v. Aetna Ins. Co.

• Decision Date: 04 June 1909
• Citation: 108 Minn. 127,121 N.W. 613
• Parties: ROACH v. AETNA INS. CO.
• Court: Minnesota Supreme Court

108 Minn. 127

121 N.W. 613

ROACH

v.AETNA INS. CO.

Supreme Court of Minnesota.

June 4, 1909.

Appeal from District Court, Clay County; L. L. Baxter, Judge.

Action by Francis Roach against the AEtna Insurance Company. Verdict for plaintiff. From an order denying new trial, defendant appeals. Reversed.

Syllabus by the Court

In an action on a policy of insurance, conditioned that it should be void if the insured premises became and remained vacant for more than 30 days, it is held that the trial court erred in taking from the jury the question whether the premises had in fact become vacant and unoccupied for the time stated. Chas. S. Marden, for appellant.

W. B. Douglas and Nye & Dosland, for respondent.

BROWN, J.

Action to recover on an insurance policy, in which the trial court instructed a verdict for plaintiff, and defendant appealed from an order denying a motion for a new trial.

The policy upon which the action is based is the Minnesota standard form, and contained a provision to the effect that it should be void if the insured premises became and remained vacant for more than 30 days. The only defense interposed by the defendant's answer or at the trial was that plaintiff, the insured, had abandoned the property, and that the premises became and remained vacant and unoccupied for more than 30 days preceding the fire. The trial court instructed the jury in effect that the evidence did not show that the premises had become vacant and unoccupied within the meaning of the policy, and of this plaintiff complains.

A majority of the court are of the opinion that the court erred in taking this question from the jury. The evidence tends to show that the premises, a dwelling located near Barnesville, was occupied by plaintiff at the time the policy was taken out as a house of ill fame; that some time about September 30th she abandoned the business and premises, and left them with the intention of not returning; the greater part of her furniture was removed and shipped elsewhere; and the windows of the house were all boarded up to prevent their destruction. She testified that she left one of the inmates of the house in charge thereof, and this person testified that she remained in the occupancy thereof, in the condition stated, but after some rearrangement of the remaining furniture, except when on visits to surrounding cities. Other witnesses testified to the appearance of the house subsequent to October 1st; that the windows were boarded...