89 Iowa 170 | Iowa | 1893
One of the plaintiffs testified on cross-examination that the building that was insured was on leased ground, and had been for many years' before the fire. On motion of the plaintiffs this evidence was excluded, to which the defendant excepted. The defendant offered in evidence the proofs of loss made by the plaintiffs, for the purpose of showing by the admission therein that the plaintiffs were not the owners in fee simple of the real estate upon which the building stood, and that it was upon leased land. This evidence was excluded, upon the plaintiffs’ objection, to which the defendant excepted.
The ground of the plaintiffs’ motion and objection is that such evidence is not admissible under section 1733 of McClain’s Code (section 2, chapter 211, Acts of Eighteenth General Assembly). Section 1733 is as follows:
“All insurance companies or associations shall upon the issue, or renewal, of any policy attach to such policy, or indorse thereon, a true copy of any application or representation of the assured, which, by the terms of such policy, are made a part thereof, or of the contract of insurance, or referred to therein, or which may in any manner affect the validity of such*173 policy. The omission so to do shall not render the policy, invalid, bnt if any company or association neglects to comply with the requirements of this section, it shall forever be precluded from pleading, alleging or proving such application or representations or any part thereof, or falsity thereof, or any parts thereof, in any action upon such policy, and the plaintiff in any such action shall not be required, in order to recover against such company or association, either to plead, or prove such application or representation, but may do so at his option.”
One of the purposes of this statute, if not the sole purpose, is to cause all parts of the contract of insurance to appear in or upon the policy. It is certainly not intended that representations appearing on the face of the policy should also appear by copy indorsed thereon or attached thereto. It is only applications and representations of the assured that are made a part of the contract, and which may affect its validity, and that do not appear therein, that are required to be indorsed upon or attached to the policy. To secure observance of this requirement, insurance companies are restricted in their pleadings and proofs to applications and representations thus appearing in or upon the policy. We have seen that this policy expressly provides that if the buildings stand on leased ground, or if the title be less than fee simple in the insured, it must be so represented to said company, and so expressed in this policy; otherwise, the policy will be void. It is not expressed in the policy that the buildings stood on leased ground, nor that the title in the insured was less than fee simple, and the inference must be that it.was not so represented to the company. The policy also provides that, if the insured concealed any fact material to the risk, the policy shall be void. It was material to the risk whether the buildings stood upon leased ground, and whether the title of the
C.ounsel for the appellee contend that, even if the excluded evidence was admissible, the plaintiffs were entitled to a verdict, because the appellant had alleged, and failed to prove, that it did not know that the building was on leased ground. The right of the defendant to introduce such evidence was involved in the question already considered. If the appellant was not entitled to show that the building was on leased land, then surely it might not show that it - did not have knowledge of a fact -that it was not allowed to prove. For the error pointed out, the judgment of the district court is reversed.