108 Minn. 127 | Minn. | 1909
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 thirty 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 thirty 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 defendant 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 30 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
The other questions raised by appellant are presented here for the first time, are not covered by the pleadings, nor urged in the trial below, and cannot therefore be considered. White v. Western Assurance Co., 52 Minn. 352, 54 N. W. 195.
Order reversed and a new trial granted.