
    State Insurance Company of Des Moines v. Lola M. Hunt.
    Filed February 2, 1898.
    No. 7796.
    Insurance: Withdrawal of Defense from Jury. It is error to withdraw from the consideration of the jury any valid defense which the evidence tends to establish.
    Eiiroii from tlie district odurt of Dakota county. Tried below before Nonius, J.
    
      Reversed.
    
    
      O. J.. Gurloio, for plaintiff in error.
    
      Mcll G. J ay and J ay & Beck, eontra.
    
   Sullivan, J.

On April 11, 1891, the State Insurance Company issued a policy of insurance to Lola M. Hunt for a term of five years on a dwelling-house located in South Sioux City, in this state. The premises were occupied by the assured when the policy was issued. Subsequently, however, she removed to Sioux City, Iowa, and one O. A, Anderson, with.his family, entered into possession of the property and continued to occupy it until August 23, 1893. On the morning of the following day it was entirely destroyed by fire. In an action brought to recover for the loss sustained the company alleged and relied on a violation of the following provisions of the policy: “Or if without written consent hereon * * * the risk be increased by any means; or if there is any change in the occupant or occupancy of the premises insured; or if the buildings or either of them become vacant, * * -x- |}ieil in every such case this policy shall be void.” There was a verdict and judgment in favor of Hunt, and the insurance company has brought the case here for review by petition in error.

On the trial the company offered to prove that when Hunt vacated the property it remained unoccupied for a period of ten days or more. This'offer was refused and the defendant excepted. In stating the issues the court instructed the jury that “Defendant, the insurance company, answering, admits that the policy was issued; that the premium was , aid, and that the dwelling-house was destroyed by fire while such policy was in force, and that proof of loss was duly made, resting its defense upon the alleged fact that the plaintiff procured or caused the fire that destroyed the dwelling-house to be set for the purpose of securing the insurance money from this and other companies, and also, that the hazard to the building had been increased by the act of the plaintiff by leaving said house vacant at the time it was burned.” Upon the giving of this instruction as well as upon the rejection of the offer above mentioned error is assigned. That the instruction complained of withdrew from the consideration of the jury the defenses based on change of occupants and non-occupancy must be conceded, and the action of the court in this regard cannot be justified on the assumption that theré was no evidence tending to establish these defenses or either of them. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.  