192 Iowa 716 | Iowa | 1921
The policy in suit was issued in December, 1918, to Harry M. Duncan, husband of plaintiff, who was named as beneficiary, and insured died, as the result of accident, August 19, 1920. The first premium paid at the time the policy was issued was $5.00. This payment kept the policy in force until noon of January 1, 1919, when another payment of $1.50
It is suggested by appellant that, while the statement of counsel is, in form, an objection to the admissibility of the testimony of Mrs. Duncan, it was intended, and should be treated, as a motion to strike. It is immaterial whether it be treated as the one or the other. If as the former, it was made just before the examination of the witness was concluded, and after full answers had been made to all questions propounded to the witnesses. It was, in any event, too. general in its character, as some of the testimony, at least, of the witness, was clearly admissible. If treated as a motion to strike, it did not specifically designate the answers of the witness which counsel desired to have stricken. The court was not required to go through the record and pick out such answers of the witness as might have been excluded upon proper objection, or stricken upon proper motion.
Most of the receipts given on behalf of the company for the monthly payments had been lost or destroyed, and but two
No evidence was offered on behalf of the defendant. The evidence on behalf of plaintiff showed, without conflict, that the monthly payments were kept up by the insured, except that no payment was made during August, 1920. Whether such a course of dealing was shown as might reasonably have led the insured to believe that it was not the purpose or intention of the insurer to insist upon a strict performance of the terms of the policy as to the time of the payment of the monthly renewal premiums, was a question of fact. There was some evidence tending to sustain the claimed waiver. The finding of the court in favor of plaintiff upon this point has the same weight and effect as the finding of a jury. This court does not try de novo law actions in which a jury has been waived. There was evidence tending to support plaintiff’s plea of waiver, and the finding of the court thereon is conclusive and binding upon this appeal.
It will serve no useful purpose for us to discuss or review the numerous authorities cited by appellant. What has already been said is decisive of the questions presented for review. It follows that the judgment of the court below must be, and is,— Affirmed.