Snyder v. Fireman's Fund Ins. Co.

• Decision Date: 05 June 1889
• Citation: 78 Iowa 146,42 N.W. 630
• Parties: SNYDER v. FIREMAN'S FUND INS. CO.
• Court: Iowa Supreme Court

78 Iowa 146

42 N.W. 630

SNYDER

v.FIREMAN'S FUND INS. CO.

Supreme Court of Iowa.

June 5, 1889.

Appeal from district court, Henry county; H. C. TRAVERSE, Judge.

This is an action upon a policy of insurance against loss by fire. The property insured was a dwelling-house which was destroyed by fire on the night of September 13, 1886. When the evidence had all been introduced, the defendant moved the court to direct the jury to return a verdict against the plaintiff. The motion was sustained, and plaintiff appeals.Woolson & Babb, for appellant.

R. W. Barger, for appellee.

ROTHROCK, J.

1. The property insured was a dwelling-house which, for some time before it was destroyed, was occupied by one Stearns as a tenant of the plaintiff. Prior to the fire the plaintiff had agreed to exchange the house with one Mrs. Porter for another dwelling-house; and, at plaintiff's request, Stearns agreed to move out of the house which was insured and into the house for which it was exchanged. In pursuance of the arrangement Stearns moved his householdgoods and family from the building. The family left the house in the evening, not intending to return to occupy the house, and the fire by which it was destroyed was discovered at about 12 or 1 o'clock that night. The agreement for an exchange of property with Mrs. Porter had been concluded, and a day or two before the fire she had procured a force of carpenters to commence extensive repairs upon the house. The policy contained this provision: “No liability shall exist under this policy for loss on any vacant or unoccupied building unless consent for such vacancy or unoccupancy be hereon indorsed.” One ground of the motion to direct a verdict was that the building was vacant and unoccupied at the time it was burned. There were other grounds for the motion, but we think they need not be specially noticed, as in our opinion there is no escape from the conclusion that the building was vacant and unoccupied when it was destroyed. We cannot better express our views upon the question than to quote from the decision of the motion by the learned district judge who tried the case: “The house in controversy was a dwelling-house; and, ordinarily, a dwelling-house can only be occupied by some one living in it, and having it as a home,--a place of residence,--but each case must stand on its own peculiar facts and circumstances. The rule that, in order to constitute occupancy of a dwelling-house, some one must live in it, does not, of course, preclude the occupant from visiting or being temporarily absent; nor would such a rule preclude a tenant from moving out and some one else moving in, giving a reasonable time for the one to get out and the other to get in; but, in the case at bar, the tenant had moved his family out; he had moved his bed and bedding, his stoves, his furniture, and he had moved everything but some trumpery,--a box or barrel, a cross-cut saw, a pair of skates, or something of that kind. The tenant had gone away, and it affirmatively appears that he did not expect to return to the house for the purpose of living there. Never more was it to constitute his home. There is no evidence to show that the plaintiff expected to put a tenant in it; there is no evidence to show that the...