170 Iowa 521 | Iowa | 1915
On May 20, 1909, the defendant association issued its policy to the plaintiffs, insuring them against loss or damage by fire, lightning, tornadoes, cyclones and windstorms for the period of five years, to the amount of $2,000 upon the horses and mules of insured party, not to exceed $150 on each animal. The plaintiffs’ petition alleges that on April 7, 1913, while'said policy was still in force, lightning struck the tent in which the insured animals were then being kept at or near the town of Nyhart in the state of Missouri, killing nine horses and injuring five others, to the loss and injury to plaintiffs in the aggregate sum of $1,600, for which amount a recovery is demanded. . In an amendment to the
Answering the petition, defendant admits that plaintiffs reside at Laurens in Pocahontas county, Iowa, admits issuing the policy sued upon and that it has collected and received premiums and assessments thereon. It admits the agency of the person taking the application for insurance and its knowledge that the horses were in Buena Yista county when insured, but denies any knowledge or notice that they were thereafter to be used in any other state than Iowa. For a further answer, it is alleged that the defendant is a mutual association organized under the laws of Iowa and is without power to insure property outside of the state, and if the policy is construed as covering the plaintiffs’ horses in Missouri, it is ultra vires and void. Still further answering, it is pleaded that, by removal of the horses to Missouri, the hazard of loss and injury was materially increased without notice to the association, and the policy thereby rendered void. By an amendment to the answer, it is further alleged that, in applying for the insurance, plaintiffs falsely represented that the insured property was free from incumbrance, when in fact the horses were then subject to the lien of a chattel
Replying to the answer, plaintiffs reassert that the policy was issued with notice and'direct reference to the fact that the horses were then being used and were thereafter to be used in carrying on the business of Winsor & Son wherever they might obtain contracts in their line of employment, and that, with knowledge of such facts and conditions, the association has continued to recognize the validity of such policy and continued to levy and demand payment of assessments thereon at divers times down to a date since the commencement of this action, and by so doing has waived the right, if any it ever had, to deny its liability on the policy or to defend against plaintiffs’ demand for payment thereof. They further allege that, at the time the policy was issued, they resided and have ever since had their home at Laurens, in Pocahontas county, Iowa; that their absence and employment in Missouri was temporary only, with the purpose, when their contract there was completed, to return with their horses to their said home in Iowa where their said property was always kept, except when temporarily employed elsewhere. Referring to the charge of. false statements in the application for insurance, the reply denies the same and avers that the application was made and the policy issued with knowledge on the part of the association and its agent that there was a chattel mortgage outstanding upon the horses. This mortgage indebtedness, it is alleged, was thereafter largely reduced and the subsequent mortgages mentioned in the answer secured only the unpaid' remnant of said indebtedness and served to decrease the hazard and risk created by the original incumbrance. Plaintiff further says that, with knowledge of all these facts, the association has continued to make and collect assessments upon the policy, thereby waiving its right, if any it had, to plead or urge a defense to this action on that
The appellant submits its case relying upoh the following propositions: First, that the removal of the property from Iowa to Missouri increased the risk or hazard to such an extent as to avoid the policy; second, that the association was without any authority to carry any risk outside of the state of Iowa, and therefore the removal of the property to Missouri rendered the insurance void; third, that the policy was rendered void by the incumbrance existing on the property when the contract was made; and fourth, that the policy was in any event rendered void by the giving of a subsequent mortgage. These points we will consider in the order stated.
The rule as laid down by Mr. Wood, supra, is as follows:
“In the absence of special restriction clothed in clear and unequivocal language, as to the territory within which the property was to be insured, it will be deemed to have been within the contemplation of the parties that the property might be used in the ordinary way, and, considering the nature of the property, that the insurance would continue to attach wherever the same may be while the owner is using his property in the ordinary manner, and for the purposes for which such property is ordinarily held and used.”
Even where the policy insures movable property which is described as being in a certain place or upon a certain farm or in a certain building, this court has frequently held that, in the absence of other restrictive words, the description of place is merely a matter of identification of the thing insured, and that its removal from the place for appropriate and temporary use does not affect the indemnity. In the Peterson case, supra, where the policy describes the property as being upon a certain section or farm, we said:
“Such limitation would be unreasonable. In effecting this insurance and paying the company for the .risk it assumed, it cannot be supposed that the plaintiff was to be deprived, upon peril of forfeiture of his policy, off the ordinary and beneficial use of the property insured.”
In the very recent case of Kinney v. Ins. Co., 159 Iowa 490, 494, the live stock insured had been removed from the place described in the policy for the temporary purpose of pasturage at another place, and there the loss occurred. The articles of the association in that case expressly restricted its authority to “the insurance of live stock while on the farm in the possession or employ of the owner or his tenants”; yet we held, after a review of the authorities, that this provision is “for the purpose only of identifying the property covered by the policy. There is no’ provision in the policy that the property insured shall not be removed from the premises during the continuance of the policy, and no provision that removal from the premises will render the policy inoperative.” We- further said, in that connection, “from the very nature of the property, it was apparent that it was not contemplated by either party to the contract that the property should remain permanently on the place designated in the policy.”
In the McCluer case, supra, the insurance was upon a horse and carriage “contained in” a certain barn and it was held that this amounted to no more than a statement that the ‘ ‘ carriage when not in use was kept in the barn described as the ordinary place of deposit,” and that the presumption is that property of that nature is “in use and that the policy is issued with reference to such use.”
In this case, neither the agent nor the association could reasonably suppose or assume that the plaintiffs were owning
The conclusions stated in this paragraph are not in the least inconsistent with the decisions of this court cited by the defendant. In Lakings v. Ins. Co., 94 Iowa 476, which is largely relied upon by counsel, the court expressly reaffirms the doctrine of the Peterson and other cases which we now follow, but did not there apply it for the very sufficient reason that the policy there in suit in express words insured the property “while on the premises only.” In Dryer v. Ins. Co., 94 Iowa 471, - the language of the policy is not quoted, but it was taken as conceded that it covered the property “only when on the premises described.” But even there it was held that if the soliciting agent, knowing that the owner desired insurance which would permit the property to be moved, filled out the application for a policy of restricted insurance only, without the applicant’s knowledge or consent, the company might be estopped to deny liability.
Whatever may be said as to decisions by the courts of a few other states on the question here discussed, this court is thoroughly committed to the rule which we here apply,
The situation is not rendered any stronger for the defense by the provision of the by-laws that, when the property shall be removed from the building in which it was originally insured, consent may be obtained therefor from the secretary, or by the further advice to the policy holders that “when you sell your property or change your location or post office, the secretary should be notified at once.” The property was not originally insured in a building and there was no change of the owner’s location or post-office address. The home of the parties at all times remained at Laurens, where they regularly returned and kept the horses when their contract work was completed.
As we hold that plaintiff did not violate any provisions of the contract by the use he made of the horses, he was under no burden to negative an increase of risk.
Y. No objections to the instructions given by the court or to the rulings upon the admission of evidence have been argued by counsel and it is quite doubtful whether, taking the charge to the jury to be the law of the case, as in strictness we ought, some of the main questions we have discussed are properly before us. We have chosen, however, to consider the ease upon its merits and find them to fairly sustain the judgment below.
In so far as the record is undisputed, it discloses no reason why the defendant should not perform its contract of insurance, and in so far as there is any conflict in the testimony, the finding of the jury in plaintiffs’ favor is conclusive