74 Iowa 419 | Iowa | 1888
The instruction given by the court to the jury was not excepted to by either party. It is therefore apparent that, under the above instruction, and the answers to the questions returned by the jury, all other questions, such as waiver and the like, are out of the case, provided the evidence warranted the jury in answering the questions as they did. The defendant insists that the answers to the questions are unsustained by the evidence. The evidence as to this question is in conflict. It appears that two others of the same family were holders of certificates of insurance issued by the defendant, and we think'the jury may fairly have found from, the evidence that no notice was mailed to Mary Garret-son, but that all three of the notices to the members of the family were mailed to one of the others, and that it was never seen by the insured, and that she had no knowledge of the assessment during her life. We do not deem it necessary to set out the evidence on this point. It is sufficient to say that we are satisfied we ought not to interfere with the verdict as being contrary to the evidence.
Objections were made by defendant to certain evidence of conversations had with the agent of the defendant who induced the insured to become a member of the company. This evidence tended to show a waiver of the conditions providing for a forfeiture. These and other objections to evidence need not be considered ; for, as we have seen, the question of waiver is out of the case. The verdict of the jury is not based upon a waiver of forfeiture, but upon the ground that there was no forfeiture, and we do not think that there is any ground for certain objections made to the evidence introduced by the plaintiff, upon the question of fact
As we have said, the instructions of the court were not excepted to, and the motion for a new trial made no claim that the verdict should have been for a merely nominal amount. It is claimed that the. verdict was excessive. No motion in arrest of judgment was made, and no claim was at any time presented that an action at law would not lie, nor that no judgment at law could be rendered against the defendant. If counsel are to be understood as making this claim now, it comes too late. No question can be presented here which was not presented to the court below. The rule is so well understood that we need not cite authority in its support. It is proper to say that the cause was tried in the court below before the case of Newman v. Cov. Mut. Ben. Ass’n, 72 Iowa, 242, and other cases against assessment insurance companies, were decided by this court. Under
Affirmed.