Lead Opinion
It appears from the evidence that Howe applied to the agent of defendant on the 18th day of December, 1867, for insurance, and it was arranged that the policy should be
The question here presented is of very great difficulty, and its solution, either upon principle or authority, is not entirely free from doubt. Two preliminary questions may be considered, the determination of which will aid in reaching the final conclusion upon this point.
1. Which was the prior insurance, that by the defendant or the Phoenix Company ? It quite satisfactorily appears to us that the policy issued by defendant must be considered as commencing on the 18 th, the day of its date.
2. What was the effect of the receipt given by the agent of the Phosnix Ins. Co. ? It must be conceded that, if it bound the company at all, and its binding effect cannot be denied, it raised a contract of insurance in all respects like the contracts of the company as expressed in the policies commonly issued by them. The agent was not clothed with power to vary or change the policies of the company and it cannot be presumed that such a thing was contemplated by either the agent or the assured when the receipt was executed. The transaction then was a contract for insurance upon the usual terms and conditions as expressed in the policy which the agent was empowered to issue. It is shown by the evidence that the policies of the Phcenix Company contained a condition similar to the condition of the policy sued on against prior or subsequent insurance, without consent'of the company indorsed on the policy, and declaring the same shall avoid the contract. It appears that the agents were authorized to issue policies of this form and that they embodied the contracts of insurance as commonly entered into by the company. The contract therefore between the Phoenix Company and Howe must be considered as containing a condition against other insurance as above stated.
We now have the case of two policies given at different dates covering the same property, each having a condition against other insurance, both prior and subsequent, and
Of course the company issuing the subsequent policy could not rely upon the breach of the condition, in order, to avoid the instrument, until knowledge thereof was 1 acquired, and its acts treating the policy as avoided would be. sufficient if shown to have been done after such knowl-.i edgte. \ The same principles will apply to the prior policy. It was not absolutely void, on account of the subsequent insura&ce, but was voidable only. It was a binding instrument when executed, and would so continue until some( act done by defendant intended to avoid it, on account off the breach of the condition against the subsequent insurance: - But it could not be avoided on account of the Phoenix policy unless that instrument itself was valid. If it so happened that when the action was brought on defendant’s policv, or even at the trial, it was made to
Our conclusion upon this branch of the case is not without support of the authorities. The following cases may be cited as sustaining the principles above stated. Jackson v. Massachusetts Mut. Ins. Co., 23 Pick. 418; Clark v. New England Ins. Co., 6 Cush. 343; Gale v. Belknap Ins. Co., 41 N. H. 170; Stacy v. Franklin Ins. Co., 2 Watts & Serg. 506; Philbrook v. New England Mut. Ins. Co., 37 Me. 137; Schenck v. Mercer County Mut. Ins. Co., 4 Zabr. 447; Jackson v. Farmers’ Ins. Co., 5 Gray, 52.
The doctrine which we have above announced does not go to the full extent of some of the cases just cited. It is held in Philbrook v. The New England Mutual Insurance Company, supra, that the prior policy is valid, even though the subsequent policy is not avoided by the under
The doctrine which we recognize here is based upon the fact that the subsequent policy was treated and considered as avoided by the company issuing it as soon as it had notice of the prior insurance. In our view this is a most important consideration, for, if the underwriter in the second policy does not treat it as avoided, it cannot so be considered by the insured or the company issuing the prior policy. The condition against prior insurance in the subsequent policy is for the benefit' of the insurer, who may, at his option, waive it or insist upon enforcing its terms. If he seeks to enforce the condition and treats the policy as a void contract, it is indeed difficult to see upon what grounds it may be regarded as valid, as an insurance that will defeat the prior policy. In this view our conclusion is not in conflict with David v. The Hartford Insurance Company, 13 Iowa, 69, and Bigler v. The New York Central Insurance Company, 20 Barb. 635, and same case, 22 N. Y. 402. In the first of these cases an action was brought upon a policy containing a condition against subsequent insurance. Other insurance, taken after the date of the policy, was relied upon to defeat recovery. The plaintiff claimed that the subsequent policies, on account of certain conditions therein which were violated, were void. It is held that these policies are not void, but, on account of the breach of their conditions, might have been avoided. As they were treated as valid contracts by both of the parties thereto, the losses occurring thereon having been paid by the companies executing the subsequent policies, the breaches of the conditions were regarded as waived, and the instruments held to be binding upon the respective underwriters. The argument supporting the conclusion reached by the court may not entirely accord with the
Carpenter v. The Providence Washington Insurance Co., 16 Pet. 495, is cited in support of the rule that when there are two successive policies, both containing conditions of avoidance on account of other prior or subsequent insurance without notice, the first may be avoided on account of the second insurance. This case we have observed is often cited in support of this rule, and is so referred to in Devid v. The Hartford Insurance Co., and Bigler v. The New York Central Insurance Co., supra. If such a rule be found in the case, but it does not so appear to us, its annunciation was not called for by the facts before the court, and made the basis of the decision. The policy upon which suit was brought is considered in the opinion the second instrument, and the court holds that it was defective by a condition therein against prior insurance, which in fact existed when it was issued. See
In our opinion the evidence- was properly excluded.
The defendant claims the act of Howe, in stating the insurance in the Phoenix Company in his proof of loss, estops him from denying the validity of the contract with that company, and that, so far as defendant’s rights are to be affected, it must be considered that there was a valid insurance by a policy of the Phoenix Insurance Company covering the property destroyed.
The law of estoppel is founded upon the obligation which rests upon every man to speak and act according to the truth and the just policy of the law which will not permit men to deny that which they have solemnly asserted or acted upon as true. The rule is intended to prevent great mischief and wrong resulting from the want of confidence
In the light of these principles we will consider the act of Howe which 'is claimed'to operate as an estoppel. The proof of loss made by him states that there was an insurance in the Phcenix Company, and sets out the writing upon which the contract of insurance was founded. The facts stated were: 1. The existence of the insurance. 2. The existence of a receipt, which is claimed to be evidence of the contract with the Phcenix Company. These admissions of fact are not denied in this action. There were no others made by Howe. He does not pretend to state any other facts connected with the alleged insurance in the Phcenix Company, yet it certainly cannot be denied that many other facts connected with the transaction determined the validity of the contract of insurance. These faets, too, were extrinsic as to the receipt and other matters stated by Howe. Neither does Howe state the legal conclusion that the Phcenix insurance is valid and binding, and that is the very thing which defendant claims plaintiff is estopped to deny. The facts admitted by Howe are not denied in this action. The validity of the Phcenix insurance he did not claim or set up in the proof of loss; there is, therefore, no foundation for an estoppel as to that fact.
IY. Tbe court instructed tbe jury tbat, if tbe defendant treated tbe policy in suit as in force, after full knowledge of tbe subsequent insurance of tbe Pbosnix Company, sucb conduct will be regarded as a waiver of tbe forfeiture and an election to treat tbe policy as in force. And tbat, in order to determine whether tbe defendant did' treat tbe policy as in full force, “ it was proper for the jury to consider when tbe premium was paid byHowe and forwarded to tbe company, tbe acts of tbe company in reference to demanding and requiring tbe assured to answer certain questions propounded by tbe State agent, touching tbe loss, etc.; tbe acts of tbe defendant in selecting appraisers and all other facts in evidence bearing on the question.” These instructions, tbe defendant claims, are erroneous, or rather being inapplicable to tbe facts they were improperly given. So far as they embody principles of law, they are not objectionable, and are so regarded by defendant’s counsel; at least no objections are made to them.
Y. Other instructions asked by the defendant, being in conflict with the principles we have announced in this opinion, were properly refused. They need not be separately considered. They relate to the validity and effect of the Phosnix insurance, and to the effect to be given the ' statements of Howe in the proof of loss. They present these questions in different views, all, however, embodying principles not in accord with the doctrines we herein recognize. Further discussion of these doctrines, and their special application to the several instructions, would not be profitable.
yi. One of the defenses to the action pleaded by defendant is, that the property insured.was burned by Howe himself, and the loss was not the result of accident or any other cause which would render defendant liable on the policy. Evidence was given to the jury which, it is claimed, tended to support this defense. For that purpose, defendant offered to prove the insolvency of Howe at the time of the loss of the property. The evidence was excluded as immaterial and not relevant to the issue,
The judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting. — I find myself unable to agree with the reasoning and conclusions reached by the majority, as expressed in the foregoing opinion.
That there was double insurance on the same property is conceded. One in the Phoenix Insurance Company, and one in the Hartford Insurance Company. Each policy provided that “ if the assured shall have, or shall hereafter make any other insurance upon the property hereby insured, without the consent of the company written hereon, in- such case this policy shall be void.” If, when the second policy was taken out, the assured had any prior insurance on the same property, the second policy was ipso facto void unless consented to by the company in writing on the policy. Which of the two policies then was the second or subsequent one % The assured applied to the agent of the Hartford Company on the 18th day of December, 1867, for insurance, and it was arranged, not with the agent but with a clerk in the office, that a policy
When the assured applied to' the Phoenix Company for insurance he had no other insurance. When he received tho policy sued on, the next day, he did have other insurance. He then had double insurance, and not before. The first insurance was obtained from the Phoenix Company, the second in the Hartford, and the fact that the policy received of the latter company bore date prior to that of the former does not affect the question. The object and purpose of the clause in the policy by which it is avoided, where the assured has prior insurance, is to prevent or remove the temptation to destroy property insured above its value, and thereby protect the insurer against this species of frauds. And it is the fact of there being prior insurance, not the date of the policy, that is material, and operates to render the second insurance void.
The majority opinion holds that the Phoenix policy was the subsequent insurance, and void because of prior insurance in the Hartford Company, .and this holding is based entirely upon the facts that the policy in the Hartford Company bears date prior to. that in the Phoenix Company, and the premium charged ran from the date of the policy, add it is held that the Phoenix policy was forfeited because of prior insu/rcmce in the Hartford Company, of which no notice was given by the assured.
I have already shown that at the time,the assured ob
The fundamental error of the opinion, in my judgment, lies in taking that for the prior insurance, whose policy is prior in date, without reference to the fact when the contract of insurance was made. The insurance in the Hartford Company was effected at the time, and not before, the policy was delivered and premium paid, which was after that of the Phmnix. No valid contract of insurance with defendant existed prior to that time ; hence no insurance in fact, the existence of which controls the question before us. On the other hand, as I have shown, at the time in
The appellant is the company defrauded-; the Phoenix Company has not been, at least not in this respect. On what principle, then,' of law or justice, can the policy of the Phoenix Company be held void, and that of the Hartford held valid ? In my judgment, the Phoenix policy was not foi’feited because of prior insurance (for there was none in fact), and the policy sued on was forfeited because of the prior insurance in the Phoenix Company, obtained by the assured, of which he failed to notify the defendant at the time he received its policy, or within a reasonable time thereafter.
. II. On the trial, defendant offered evidence to show that, at the time the insurance was obtained, the property insured was covered by a chattel mortgage, which was refused. The evidence was for the purpose of showing that the condition of the policy, that the assured was “ the sole and unconditional owner ” of the property insured, was forfeited. The majority opinion holds that the mortgagor of personal property, like the mortgagor of lands, is the “ owneT.” Here I think the court has fallen into a very grave error as to the law. "Without stopping to inquire into the rights of mortgagors at common law, it is sufficient to show that by our statute, “ in the absence of stipulations to the contrary, the mortgagor of real property retains-the legal title and right ofpossession thereof; hut in the case of personal property the mortgagee holds that title and right.” Here the statute confers the title and the right of possession on the mortgagee of chattels, the mortgagor having a naked equity of redemption, a mere right to defeat the title of the mortgagee by a performance of the conditions of the mortgage, and, on a failure to comply with those conditions, the mortgagee becomes the absolute owner. Bean v. Barney, Scott & Co., 10 Iowa, 498. The
In what sense then can it be said that the mortgagor of personal property is “considered the owner?” None whatever. Much less can it be maintained that he is the “sole and unconditional owner.” In my judgment, the evidence was material and should have been admitted.
I have thus very briefly stated the principal grounds of my dissent, upon either of which I hold the judgment should have been reversed.