78 Iowa 146 | Iowa | 1889
I. 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 household goods 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 twelve or one 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 endorsed.” .. 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 seme one living in it, and having it as a home, — a place of residence,
The facts are fairly and quite fully stated in the foregoing decision, and they are not only fully supported by the evidence, but they are without contradiction. But little further is required to be said in support of the decision of the district court. Counsel have argued the question at great length and cited many authorities. This may always be done on almost any question arising in a fire insurance case. For some reason it is a branch of the law upon which many inharmonious decisions have been made by courts of last resort. The one fatal defect in the plaintiff’s case is that the continuity of the occupancy was completely broken. It was not the case of one family moving out and another moving in, as in Eddy v. Insurance Co., 70 Iowa, 472. Stearns, the tenant, had ceased to have any dominion over the property, and no person had taken possession in view of occupancy. The case is more like Dennison v. Insurance Co., 52 Iowa, 457; Fehse v. Insurance Co., 74 Iowa, 676, and other cases determined by this court. In Dennison's case, it was said that “the question as to whether the building was unoccupied for a reasonable or unreasonable length of
II. It is claimed by counsel for appellant that, under the vacancy clause in this policy, there is no liability of the insurer upon buildings which are vacant and unoccupied at the date of the policy, but that the liability may exist if they become vacant or unoccupied after the policy is issued. We do not think the clause under consideration ought to be so construed. The only fair construction is that there shall be- no liability if the loss occurs at a time when the building is vacant or unoccupied. Affirmed.