104 Iowa 167 | Iowa | 1897
I Plaintiff corporation was, on and prior to J une 28, 1894, the owner of a plant in the city of Dubuque, consisting of a brick building containing certain fixed and immovable machinery, engines, and boilers, a stock of baskets and lye, manufactured and in process of manufacture, all of which machinery, engines, and boilers were used in the manufacture of baskets and lye. On that date, and prior thereto, plaintiff held a policy of insurance covering said property in the defendant company for two thousand dollars. There was other concurrent insurance upon the property, so that it is conceded that the defendant’s liability, if any, is for only one-fourth of the loss or damage sustained under said policy. The pleadings and amendments thereto present several issues, but the following are the important questions presented for
The chief controversy between plaintiff and defendant was this: Plaintiff was insisting upon pay for cer tain articles as being covered by the policy, though not expressly specified in the policy. The defendant was denying any liability therefor, because they were not expressly enumerated in the policy. Now, it was no part of the duty of the appraisers to determine this controversy, or to determine what property, in fact, the policies covered. Clearly, we think plaintiff had a right to insist that, if an appraisement was made, it should embrace all property claimed by him to be covered by the policy. It would then leave to be determined by the parties, or by litigation, the question as to whether or not these articles of property were really embraced within the provisions of the policy, though not specifically enumerated. In any event, it could have worked no injury to the defendant, and it can readily be seen that it was necessary or might be necessary for the protection of plaintiff’s' rights, in the event that it should thereafter be established that said items of property were embraced within the provisions of the policy. Again, if at any time thereafter plaintiff’s right to recover for said articles should be established, it might be claimed that, by entering into the agreement for a submission which did not specifically enumerate said articles, he had waived any right to claim compensation for them. He was not
III. The court did not err in refusing to submit the issue of fraud to the jury. Without entering into a discussion of the evidence, it is sufficient to say that there was no evidence of fraud which would warrant the court in submitting such an issue to them.