White v. Western Assurance Co.

Gileillan, C. J. Action on a policy insuring a dwelling house, which the policy states to be “occupied as a sporting house.” The complaint quotes from the policy the part describing the house, and stating its occupation. The answer quotes from the policy several [354] conditions upon which it was to become void, or which were conditions precedent to the right to-recovery on it'; and alleges breaches in, or failure to comply with, such conditions. Among those of which a breach is alleged is one that, if the house should become vacant or unoccupied, and so remain for ten days, the policy should be void. There was no suggestion in the answer that the house was occupied, or intended to be occupied, for an illegal purpose, or that the insurance was effected with a view to continue any such occupancy. There was no attempt to set up as a defense that the contract of insurance was illegal. At the trial the only issue of fact litigated was as to the house being vacant for ten days. At the close of plaintiff’s evidence defendant moved for a dismissal, on the ground “that plaintiff has failed to prove facts sufficient to sustain a cause of action,” which was refused. At the close of all the evidence the defendant asked a direction to find a verdict for defendant, without stating any reason for asking it, and which was refused. There was a verdict and judgment for plaintiff. The point now made is that the policy was void, because upon a house occupied for unlawful purposes, — purposes making it a public nuisance. It is manifest that the point was not made in, nor decided by, the court below. It is undoubtedly suggested here for the first time. In the record there is not, from beginning to end, a word to suggest a claim by defendant that the contract was void for that reason, or that either the plaintiff or the court understood it to make such a claim. The cause evidently proceeded and was tried on the theory that, except for the matters alleged in the answer, the plaintiff could recover. It is a rule that generally this court will not decide a cause upon an issue of fact or law not presented to and passed on by the trial court; and that, where it is unquestionable that the party tried his cause upon one theory, either of the facts or the law, in the court below, he will not be permitted to shift his ground, so as to present an entirely different theory here. Keyes v. Clare, 40 Minn. 84, (41 N. W. Rep. 453;) Bond v. Corbett, 2 Minn. 248; Johnson v. Sherwood, 45 Minn. 9, (47 N. W. Rep. 262;) Cochrane v. Quackenbush, 29 Minn. 376, (13 N. W. Rep. 154.) [355] The rule probably would not apply where the record shows conclusively that the party recovering is not entitled to recover, as where a eompláint shows conclusively, so that it cannot be helped by proof or amendment, that there is no cause of action, or where it appears by evidence incapable of being rebutted or explained away that there is no cause of action, or that there is a defense. But to permit a party, upon an appeal, to shift his ground so as to present here a question of law not raised in the trial court, in a case where, had it been presented there, the court might have obviated it by allowing amendments, and the introduction of further evidence, might enable him to mislead the trial court and the opposite party, and so, really, to commit a fraud. Without intimating whether, had the occupation of the house, as described in the policy, been for an unlawful use,'it would have rendered the policy void, we will merely consider whether the terms used show conclusively that the occupation was for such a use. If, in fact, after the policy issued, the house was occupied for illegal purposes, that would not render the policy void ab initio; whether it would be cause to avoid it would depend on its conditions. The term “sporting house” does not necessarily mean a house kept or used for unlawful sports or practices. The definition in the Century Dictionary is: “A house frequented by sportsmen, betting men, gamblers, and the like.” One of its definitions of “sportsman” is: “One who sports; specifically, a man who practices field sports, especially hunting or fishing, usually for pleasure, and in a legitimate manner.” A house would not be a public nuisance merely because frequented by such men, or kept for their use. The term haying an innocent as well as a guilty meaning, the sense in which it was used in the policy was open to proof upon an issue made upon the validity of the policy, by reason that it contemplated an unlawful occupation of the house. There was no such issue made by the pleadings; and, although there was evidence from which the jury, on such an issue, might have found that the parties used the term in the unlawful sense, there is nothing in the proceedings to indicate that the parties understood they were trying, or consented to try, such an issue. [356] That evidence was not, therefore, to be considered in respect to such an issue. Judgment affirmed. (Opinion published 54 N. W. Rep. 195.)