Sexton v. Hawkeye Ins. Co.

• Decision Date: 14 June 1886
• Citation: 69 Iowa 99,28 N.W. 462
• Parties: SEXTON v. HAWKEYE INS. CO.
• Court: Iowa Supreme Court

69 Iowa 99

28 N.W. 462

SEXTON

v.HAWKEYE INS. CO.

Supreme Court of Iowa.

June 14, 1886.

Appeal from Adair circuit court.

Action on a policy of insurance to recover for the loss of the building insured, by “a high wind, cyclone, or tornado.” The cause was tried to a jury, which rendered a verdict for defendant, under an instruction by the court, upon which judgment was rendered. Plaintiff appeals.Gow & Hager, for appellant.

Phillips & Day, for appellee.

BECK, J.

1. The policy, among other conditions, contains the following: “This company shall not be liable for any loss or damage while the above-mentioned premises shall be vacant or unoccupied, or resulting from neglect by the assured to use all possible effort to keep the property safely protected against fires that may originate on the prairies, or to save the property when on fire, or exposed thereto, or after the fire, or by theft at or after the fire.” The evidence shows that the building insured was a dwelling-house, occupied at the time the policy was issued by a tenant, who moved out of it about three months before the loss. The plaintiff testifies that the tenant left in the house “two or three jars, and two large four or five gallon jars, and a molasses keg, and a table,” which appear to have been in the house when destroyed. The plaintiff also testified that he had in the house at that time a wrench, hatchet, three empty cans, a rolling cutter, a plow file, and a ladder.” The house, after the tenant removed, was not used as a dwelling.

2. The court, in our opinion, rightly directed a verdict for defendant; for the reason that the condition of the policy against the vacancy, or its being permitted to remain unoccupied, was established without any conflict of evidence. The condition cannot be disregarded when the contract is attempted to be enforced. The parties contracted that the building should not be permitted to be vacant or unoccupied. We cannot vary or depart from their contract. It may be, but the point we do not determine, that if the condition required the performance of acts which in no way affected the hazard, or the non-performance of which could work defendant no prejudice, that the courts would not regard it. But it cannot be justly claimed that the hazard of “high winds, cyclones, or tornadoes” was not increased by the vacancy of the building. The occupants of a dwelling, for their own safety, and the protection of the property they may have in it, will exercise care for the preservation of a building by keeping closed and secured the windows and doors of the house during high winds, which would, to some extent, secure to it increased stability and capacity of resistance to storms. The tools and other articles of the plaintiff, and other articles owned by the tenant in the house at the time of the loss, did not constitute occupancy, as contemplated by the policy. The building was described in the policy as a “dwelling-house,” and was insured under the policy as such. The contract contemplates that it shall be occupied as a dwelling. Its occupancy, for the purpose of storing tools, jars, etc., did not comply with the condition against the vacancy of the building. In support of the foregoing views and conclusions, see Dennison v. Phœnix Ins. Co., 52 Iowa, 457;S. C. 3 N. W. Rep. 500;North American Ins. Co. v. Zaenger, 63 Ill. 465;Ashworth v. Builders' Mut. Fire Ins. Co., 112 Mass. 422;Poor v. Humboldt Ins. Co., 125 Mass. 274;Corrigen v. Connecticut Fire Ins. Co., 122 Mass. 298;Cook v. Continental Ins. Co....