145 Iowa 462 | Iowa | 1909
Plaintiff owned a half section of land in Iowa County, valued at something like $22,000, and, wishing to make a loan thereon, he applied to one Cranshaw, who lived at Marengo, and who was a local agent at that point of the Northwestern Mutual Life Insurance Company of Milwaukee and also the agent at the same place of the defendant insurance company. _ On behalf of the Northwestern Insurance Company Cranshaw offered to make a loan for his company upon the land to the amount of $5,000. At that time plaintiff’s improvements upon the land were insured in a local mutual insurance company, and Cranshaw represented that the Northwestern Company required insurance in a stock company upon the improvements as additional security for the loan. Plaintiff thereupon directed Cranshaw to draw up an application to defendant for an insurance policy of $1,800 upon the dwelling house which was on the land and paid to Cranshaw $36, the amount of the premium thereon. It was also agreed that the mutual policy upon the house should be canceled. The ajiplication was drawn up by Cranshaw and signed by plaintiff. It described the location of the property, asked for insurance in the sum of $1,800, gave a valuation and description of the dwelling house, and stated that it was occupied as a private dwelling. The applicant stated that he was the sole owner, that the property was not incumbered, gave the valúe of the land and a general description of the chimneys, stovepipes, number of rooms, etc., cand stated that there was no other insurance. The application also stated that: “The applicant agrees that each of the foregoing answers, statements, and valuations are true and a warranty on his part, and that the accepting of this risk and the issuing of a policy of insurance thereon by the company is to be based solely upon this application.”- The application also contained this, “Shall we send policy to applicant or agent?” and the answer was, “Agent.” From the application it
II. This action was brought on two theories: Hirst, that a policy was issued to plaintiff which would entitle him to recover; and, second, ’that no policy was issued, and that plaintiff had an oral contract of insurance under which he was entitled to recover. In either event, he pleaded that, if there were any conditions of the policy not embodied in plaintiff’s application for insurance, they should be stricken out, and the policy issued reformed accordingly, or, if no policy was issued, the court should establish an oral one which would entitle him to recover. Defendant pleaded the execution of its policy pursuant to plaintiff’s application, and that it was sent to the life insurance company according to an arrangement between plaintiff and Cranshaw whereby it should be delivered to said insurance company as 'part security for plaintiff’s loan. It further pleaded that the policy contained a provision to the effect that, if the “property insured should thereafter become mortgaged or incumbered without consent indorsed upon the policy, then the policy should become null and void.” As a breach of this condition, defendant set forth the execution by plaintiff of the Harrington mortgage, and as a conclusion it averred that by reason thereof the policy became and was null and void. In reply to this plaintiff, among other things, pleaded the following:
That said half section of land was of the value of more than $22,000. That the mortgage to Harrington for $1,900 incumbered the entire half section of land, and that either quarter section of said land was ample security for all of the incumbrance evidenced by the mortgages to the Northwestern Life Insurance Company and to said Harrington, and said mortgage to Harrington in said answer complained of does not affect or increase the hazard or risk of the insurance placed on said house by the defendant. Hurther replying, plaintiff states: That said mortgage to Harrington was of record in Iowa County about three years
These were the issues on which the case was tried, although the arguments of counsel cover a wider field. The record shows the following stipulation: “It is agreed between the parties to this action that a certain instrument purporting to be a copy of policy No. 14654, issued to George C. House, marked Hit’s Ex. No. 2/ shall be received in evidence and agreed to be a true and correct copy of the original policy and application indorsed thereon, issued by the company upon plaintiff’s application, and that this copy may be used in evidence the same as the original might be used if produced.” Following., this is the form of a policy issued by defendant, which one of defendant’s
The case in this respect is clearly ruled by Wensel v. Insurance Co., 129 Iowa, 295, where it is said: “After much controversy and doubt regarding the rule for such cases, we have settled these two propositions in some o'f our recent opinions: The first is that, if an agent of an insurance company has knowledge of past conditions or existing facts avoiding a policy which is secured by him, by reason of such facts being within certain prohibitions which presently avoid the policy, the company issuing the policy with
The judgment seems to be right, and. it is affirmed.