69 Iowa 99 | Iowa | 1886
I. 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.
II. The court, in our opinion, rightly directed a verdict for defendant; for the reason that the violation of the condition of the policy against the vacancy of the house, 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
III. Counsel for plaintiff present more than one argument, based upon the language of the policy, to support their position that the condition as to the occupancy of the house is applicable only to the contract of insurance against fire. One of the conditions provides that defendant shall not be liable for loss by storm caused through gross negligence of the assured. Counsel think that this condition secures the care to the building required of the assured, and therefore the condition as to occupancy, being unnecessary for that purpose, was
IY. Counsel also argue that the condition requiring occupancy applies to the land upon which the house is situated, and that, as it was occupied, the condition has been performed. The ground of this position is that the land is particularly described, and the condition- declares that if the premises are vacant, the policy shall become void. Counsel think that tbe word “ premises ” refers to tbe land as well as the bouse. This cannot be admitted. The land is described in order to designate tbe location of tbe bouse; the land is not insured, tbe bouse is. It is very plain that the word “ premises ” refers to tbe property insured.
It becomes unnecessary to consider other questions argued by counsel, for the reason that the point we determine is decisive of tbe case.
The judgment of the circuit court is
Affirmed.