Western Montana Nat. Bank v. Home Ins. Co. of New York
| Decision Date | 30 November 1925 |
| Docket Number | 5791. |
| Parties | WESTERN MONTANA NAT. BANK v. HOME INS. CO. OF NEW YORK. |
| Court | Montana Supreme Court |
Rehearing Denied Dec. 15, 1925.
Appeal from District Court, Missoula County; Theodore Lentz, Judge.
Action by the Western Montana National Bank against the Home Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.
Freeman Thelen & Frary, of Great Falls, and John L. Campbell, of Missoula, for appellant.
Murphy & Whitlock and Mulroney & Mulroney, all of Missoula, for respondent.
This is an action on a $2,500 policy of insurance, issued by the defendant to one J. J. Rogers on January 23, 1922, covering a frame dwelling house located on a farm near Ronan in what is now Lake county. The policy contained the following provision:
On August 31, 1922, the insured dwelling was totally destroyed by fire, causing a loss in excess of $2,500. The insured made proofs of loss as required by the policy and subsequently assigned his interest therein to the plaintiff. The amount of the loss not having been paid, plaintiff brought this action to recover it. The only defense interposed was that the above-quoted provision of the policy had been breached by the insured in this: That prior to and at the time of the fire which caused the loss, the insured dwelling was not occupied by Rogers, or by members of his family, or by his salaried employees, and that by reason of this condition the insurance had been suspended and was not in force at the time of the fire on the 31st day of August, 1922, and therefore the defendant was not liable for any of the loss alleged to have been sustained. At the trial the jury returned a verdict in favor of the plaintiff, upon which a judgment was entered and from this judgment the defendant has appealed.
By its instruction No. 2 the court advised the jury:
"If you believe from a preponderance of the evidence that the said dwelling destroyed by fire on August 31, 1922, was not at the time occupied by J. J. Rogers, by the members of the family of J. J. Rogers, or by the salaried employees of said J. J. Rogers, then the said insurance would be suspended and not in force and effect on the day of said fire, and the said J. J. Rogers and plaintiff herein cannot recover, and your verdict should be for the defendant."
Without objection the court gave to the jury its instruction No. 5, as follows:
These instructions became the law of the case, and, whether right or wrong, were binding upon the jury.
1. There was no contention that at the time in question the insured house was occupied by Rogers or any member of his family; but the undisputed testimony showed that on the date of the fire Henry G. Handford and his wife had their household effects in this house and were using the same as a dwelling, but were temporarily absent at the time of the fire.
The defendant contended that Handford was a tenant of the insured, whereas the plaintiff contended that he was a "salaried employee." The case turned upon the determination of this disputed question. By returning its verdict for the plaintiff, the jury necessarily found that Handford was a "salaried employee" of Rogers at the date of the fire.
It will be observed that in order to bring Handford within the definition of a "salaried employee" as given in the above-quoted instruction, it was only necessary for the plaintiff to show that he was at the time in question expending some pains or industry in behalf of the insured for which he was receiving a recompense; it might be either in money, food, shelter, or other consideration of value.
The testimony showed that some time about the middle...
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