119 Ark. 597 | Ark. | 1915
This is an action on a fire insurance policy issued by appellant company on a house owned by appellee .Steele in Prescott, Arkansas. The policy was issued on November 8,1912, and covered a period of three years. The fire occurred'on July 15, 1914. The application was taken by a soliciting agent and contained a statement that the building was occupied as a private dwelling, and the answers in the application were warranted to be true. The applicant did in fact occupy the premises as a private dwelling house, but thereafter removed from the place and rented it to a tenant. The first tenant moved out and subsequently it was rented to another tenant named Taylor. Taylor vacated the premises in April, 1914, and the house remained vacant for three weeks or a month, when Taylor rented it again from Steele, the owner, and reoccupied it. He remained in the house until July 11, when he again moved out, and it was not again occupied by any one.
The proof shows that Mr. Steele, the assured, intended to move into the house on July 16, and reoccupy it as his dwelling. He was making preparations to move When the fire occurred. There is also testimony to the effect that when Taylor moved out he left a cooking stove and a table, and that the owner claimed the property as compensation for balance of rent which Taylor owed him. After Taylor moved out in April, the assured applied to the company for a vacancy permit, and the permit was issued to him for a period of thirty days from date. There is some controversy in the testimony as to the precise dates when Taylor moved out of the house and moved back into it, and also as to the date of the permit. Mr. Steele, the owner, testified that Taylor moved out in April and moved back in May, and that the permit was dated in April, and that the period of the permit had expired when Taylor moved 'back into the house. A copy of the permit was introduced in evidence by the company, and showed that it was dated May 8, and was for a period of thirty days. The conflict with respect to those matters is not material, for it is undisputed that the vacancy permit had expired before Taylor moved out of the house the last time. The policy contains a stipulation that “if said building * * * shall become vacant or unoccupied, * * * or any change takes place in the title, occupancy or possession thereof whatever, then and in every such case this contract shall be absolutely null and void.” Appellant pleaded, among other defenses, that there was a violation of each of those conditions of the policy.
The case was submitted to a jury, and a verdict was rendered in favor of appellees for the sum of $500, the amount of the .policy. The sureties on the bond of the company were joined as defendants, and they have appealed, as well as the company itself. A receiver has been appointed for the company and has been substituted here as appellant.
The court, over objections of appellant, gave the following instruction, which we think was erroneous: “If the jury believe that Taylor went out on Saturday, and that plaintiff immediately began preparation to move in, and if the fire had not occurred, he would have moved in on Thursday morning, then the policy would not be void if the jury believe from Saturday till Thursday would be a reasonable length of time for plaintiff to get ready to move. ’ ’
The policy is therefore void on both the grounds stated. Reversed and remanded for a new trial.