74 Iowa 11 | Iowa | 1888
It is necessary to consider but a few of the numerous errors assigned and argued by appellant. The facts upon which the respective objections to the judgment are based will be stated in connection with the discussion of each.
III. The' court gave the jury the following instructions. They fully state the facts and rules of law applicable thereto announced in them :
“5. The above conditions of said policy are binding upon the assured. The burden is upon the defendant to show notice to said D. McGinnis requiring him to appear at a certain time and place to be so examined ; but if you shall find from the evidence that such notice was served by the defendant upon D. McGinnis, the burden would then be upon said D. McGinnis to show by a preponderance of the evidence that he complied with said notice and submitted to such examination under oath, or that the defendant, by some act of its own, waived such condition of the policy. And if you shall fin d from the evidence that said D. McGinnis was required by the defendant, by notice served upon him, to appear at a certain time and place to be examined and reexamined under oath touching said loss, and that said D. McGinnis failed to comply therewith, the verdict must be for the defendant, unless it be show n, as above stated, that the defendant waived such condition.
“6. If you shall find that the defendant did notify said McGinnis to appear at Des Moines to submit to an examination under oath touching said loss, but that said McGinnis made excuse for not appearing at said time and place, and that defendant accepted said excuse, and then sent an agent to Council Bluffs, and at said latter place said McGinnis submitted to examination as required by the terms of said policy, then you are entitled to find that defendant waived its right under said policy requiring said McGinnis to appear for said examination , at Des Moines, as required by its said
The answer of defendant pleaded as a defense the violation of the conditions stated in the instructions. The plaintiff, by faili ng to reply, took issue upon the facts as pleaded. No reply, pleading waiver was made by the plaintiff, and the petition does not allege that the conditions of the policy, or any of them, were waived by defendant. The pleadings, therefore, presented the issue involving the facts upon whic h it is claimed that the conditions of the policy were violated. It is plain that, upon the pleadings, the question for the court to try and determine was this: W ere the acts done by plaintiff which are alleged to constitute breaches of the conditions? But the instructions require this question to be determined: Did defendant do any acts which in law waived the performance of the conditions ? The rules of pleading require the facts to be stated upon which parties base their claim to recover, or their defenses. Under this instruction, plaintiff is entitled to recover upon facts constituting a waiver. Yet nothing in the pleadings indicates that he seeks to recover upon that ground. It is a familiar rule that, when a waiverof a condition is relied upon, it must be pleaded ; otherwise evidence thereof will not be regarded as excusing the performance of the conditions. Bernhard v. Washington Life Insurance Company, 40 Iowa, 442; Lumbert v. Palmer, 29 Iowa, 104; Edgerly v. Farmers’ Insurance Company, 43 Iowa, 587; Fauble v. Smith, 48 Iowa, 462 ; Welsh v. Des Moines Insurance Company, 71 Iowa, 337 ; Meadows v. Hawkeye Insurance Company, 62 Iowa, 389. Counsel for plaintiff, replying to this objection, say, in effect, that the evidence in fact shows a performance of the conditions of the policy referred to in the instructions, and the district court mistakenly “called the state of facts waiver.” But this explanation will not do. The defendant insisted that the conditions were not performed ; the plaintiff, that they were. The court held that the jury were authorized to find a waiver. In t his condition of the
IV. The seventh instruction is in the following language :
This instruction is erroneous on the ground that it authorized the jury to find a waiver of the condition, when no waiver was pleaded, which we have just shown cannot be done; or it substitutes an oral contract for the written one on which the suit is brought, which cannot be permitted.
Other questions discussed by counsel may not arise in a new trial. Upon some others we are not wholly agreed. These questions need not be considered. For the error in the instructions above pointed out, the judgment of the district court is Reversed.