106 Iowa 30 | Iowa | 1898
The policy in suit was issued by the defendant in May, 1892, and purported to insure the plaintiff,- for the term of one year, against loss or damage by fire, to the amount of two hundred dollars on his store building in Homer, and one thousand dollars on his stock of merchandise contained in the building. In January, 1893, the building and the merchandise contained therein were destroyed by fire, and the plaintiff seeks to recover for that loss, to the amount of the policy. This cause was before us on a former appeal, and the judgment of the district court was reversed because of insufficient proofs of loss. See 96 Iowa, 39. After the cause was remanded for further proceedings, an amendment to the petition was filed, setting out facts which were alleged to constitute a waiver of proofs of loss other than those furnished, and to estop the defendant to question their sufficiency. The defendant denies the alleged waiver and estoppel, and denies all liability.
An agent of the defendant, named Moody, testified as a witness, in regard to his duties, as follows: “I do most anything. I write insurance; make collections; appoint agents ¿ inspect risks; investigate losses; sometimes settle matters.” He also testified that he had done that kind of work for the defendant for six or seven years. A few days after the plaintiff wrote to the defendant ás stated, Moody appeared at Homer and informed the plaintiff that he had come to adjust his loss, and that he understood the plaintiff had written a letter to the company. Moody spent several hours at Homer, investigating the loss; and then, at his request, the plaintiff went with him to Webster City, and together they went into Moody’s room at an hotel, and there spent several hours in considering the loss. Moody asked for a statement of the merchandise destroyed, and the plaintiff submitted an inventory of it, prepared but a short time before the fire. Moody examined it, took a statement of all the plaintiff had lost, and said he would write out a proof of the loss, and have it acknowledged. Thereupon he wrote out the following:
“State of Iowa, Hamilton County — ss. I, J. F. Brock, being duly sworn, on oath depose and say:
“That on the 16th day of January, 1893, I made inventory of my stock of goods in my store at that date, including-medicines; and some of the medicines was held by me for sale on commission; also, said inventory, including furniture and fixtures in my store. The said inventory, including above-mentioned medicines and furniture and fixtures,, amounted to fourteen hundred forty-six 29-100 dollars ($1,446.29).
*33 Medicine held on commission amounted to.........$ 36 01
Furniture and fixtures. ...'.................... 53 58
Goods sold after inventory, and prior to fire....... 80 42
Reducing my stock and inventory...........$17 0 01
“That my policy permits me to carry insurance on f actual value of my stock of goods, in policy No. 58,275, Des _ Moines Insurance Company. That I refuse to allow any depreciation of value on my stock on account of age or damaged goods. I have been in the business since August, 1890.. At the time I went into business, I purchased a stock of goods; of Mr. J. E. Smith, at Homer, Iowa.
“It is agreed that the Des Moines Insurance Company has not waived any of its legal rights or defenses by investigating my loss for the purpose of getting facts relative to my fire, or amount of stock on hand at time of loss.”
IV. Portions of the charge given to the jury are criticised, and error in the refusal of the court to give certain instructions asked is claimed. We have examined all these matters, but without discovering any prejudicial error. The judgment of the district court is sustained by the evidence, .and appears to be right, and it is affirmed.