159 Iowa 490 | Iowa | 1913
On the 23d day of March, 1911, the plaintiff filed his petition in this action, and therein stated, among other things: That on or about the 15th day of May, 1905, the defendant issued to him its eertan policy of insurance, by the terms of which it agreed to indemnify the plaintiff in the sum of $400 against loss of cattle by fire, lightning, tornado, windstorm, or cyclone. That on or about the 28th day of January, 1909, twelve head of cattle, belonging to the plaintiff, of the actual value of $600, and covered by said policy of insurance, were destroyed by windstorm. That the cattle so destroyed, were not, at the time of their destruction, on the land described in the policy of insurance, and were on certain other land three or four miles distant, and on land leased by the plaintiff for pasturage purposes. That the insured cattle were a part of the herd of cattle actually owned and kept by the plaintiff, at the time of the issuance of the policy; on the land described in the policy, and their absence therefrom, at the time of the loss was temporary only, and for the sole purpose of pasturage, to be returned to the land described in the policy. That within thirty days from the date of such loss, notice thereof and proofs of loss were duly made to the defendant, and payment of loss demanded. That the defendant has failed and refused to pay the loss. Plaintiff further states: That, within three days from the date of the loss, the home office of defendant company was orally notified of such loss, and immediately, within two days thereafter, one of the directors of the defendant company came to the
The defendant demurred to the petition of the plaintiff on the following grounds, among others: (1) That it appears from said petition that the cattle which were injured, and for which damages are claimed, were not on the premises described in the policy and in the application, at the time the injury occurred, but that said cattle were, at the time of the injury, on other premises several miles therefrom. (2) That, from the allegations and statements of the petition, it appears that the cattle, when injured, were not covered by the policy upon which this action is based, for the reason that, under 'the constitution of defendant which was in existence at the time the policy was issued, the company was restricted, in insuring live stock, to such as was situated on the farm or premises described in the policy, and in possession of the owner thereof, or some one in his employ, or his tenants on said farm, and that the same were removed from said farm, without the consent of the company. This demurrer was submitted to the court and overruled, and, upon the ruling of the court, error is assigned on.this appeal.
That, thereafter, the defendant filed its answer to the
Upon the issues thus tendered, the cause was tried to a jury. At the conclusion of all the testimony, both parties
The defendant predicates his right to a reversal on five grounds:
The undisputed evidence shows that the cattle in controversy were on the premises described in the policy, at the time the defendant issued its policy. The most, therefore, that can be contended for, is that this provision of the constitution limits the right to insure property, other than that, on the premises described in the policy, but we take it that this provision relates only to the time the policy is issued, and is for the purpose only of indentifying the property covered by the policy. There is no provision in the policy that the property insured shall not be removed from the premises during the continuance of the policy, and no provision that the removal from the premises will render the policy inoperative for the purpose for which it was issued. It appears, from the testimony, that the property in question was removed from the lands described in the policy temporarily and for the purpose of pasturage, with the intent on the part of the assured to return them to the home farm.
In Holbrook v. St. P. F. & M. Ins. Co., 25 Minn. 229, a case in which mules were insured “as being all contained in a certain bam,” and the assured removed them to a barn on another section, for the purpose of repairing the bam in which they were kept, it was held that the fact that the loss occurred at a place other than that designated in the policy, and the fact that they had been removed from the premises designated in the policy, would not relieve the company from liability for the loss.
See, also, the case of London & Lancashire F. Ins. Co. v. Graves, 12 Ins. Law J. 308. In this case buggies were insured as contained in a certain livery stable. They burned while in a carriage factory for repairs, and it was held that the absence of the buggies, from the designated place of deposit, was an incident to their use, and the insurer was liable.
See, also, in support of this, Peterson v. Miss. Valley Ins. Co., 24 Iowa, 494, in which Judge Dillon, speaking for the court, said: “It cannot be assumed, and is not supposable, that the insurance company intended, or that the assured understood, that he would forfeit all his rights under his policy, and be deprived of the benefit of his insurance, if, peradventure, during the life of his policy, extending over five years, he should remove the property from the premises described in the policy, in the exercise of proper dominion over, and use of the property.”
This was a ease in which certain live stock was insured. There was no provision in the policy limiting the plaintiff’s use of the property to the section upon which it was located,
See, also, Mills v. Farmers’ Insurance Co., 37 Iowa, 400, holding the same doctrine. See, also, McClurer v. G. F. & M. Ins. Co., 43 Iowa, 349. See, also, Everett v. Continental Ins. Co., 21 Minn. 76, in which the property insured was a threshing machine stored in a barn on a certain section of land. The machine was burned while standing in an open field, and the company was held liable; the court saying: “Whatever might have been the purpose of the location of the machine in the application and policy, there is no ground whatever for contending that it was, in letter or in spirit, a promissory stipulation on the part of the insured, or a condition of the insurance on the part of the insurer, that this location should remain unchanged, or, if changed, that, while changed, the insurance should cease or be suspended.” See, also, Reck v. Hatborro Insurance Co., 163 Pa. 443 (30 Atl. 205).
We hold, therefore, that the removal of the cattle in controversy from the premises, on which they were at the time the policy was issued, under the circumstances of this case, did not forfeit the rights of the plaintiff, under his policy, nor suspend his insurance during the time they were so absent, for it appears that the absence of the cattle from the farm, on which they were located at the time the policy was issued, was only temporary; that their removal was incident to their care and' keeping, and the usual and ordinary method pursued by the plaintiff at the time, in caring for and keeping
It will be further noticed that there was no evidence before the court, at the time of the ruling on the motion, by which it could institute a comparison between the hazard to the property on the home farm, and the hazard incident to its location at the place where it was kept at the time of the injury. There is evidence of the condition of the fences and the provision for shelter at the place to which they were removed, but there
It will be noticed that the by-laws of the association, which were made a part of the policy, provide: “Whenever a loss has occurred to live stock, the owner thereof shall, within seven days notify the secretary or the nearest director to the place where the loss occurred, who shall immediately proceed to .adjust the loss and report by what means, in his opinion, the loss occurred, and the actual value of the stock, and if the owner and adjuster fail to agree, then the same shall be submitted to the board of directors, from whose decision no appeal can be taken.”
It will ,be noticed that the plaintiff, when examined, testified upon this question: “I had Mr. Connors telephone to the treasurer of the defendant company. This was two days
Lunderville testified: “I was informed of the loss of the Kinney cattle on the 2d of February, and went to see them on the afternoon of the 3d day. I got there about noon, and we went and looked the situation over and came back and had dinner. I told Kinney there that I could not recommend the claim. I would simply report it to the directors and they would have to act on it; that I would leave it to the board of directors to act upon. I told him, in substance, that I would report it to the board. I wrote a report of the Kinney claim on the 3d of February and mailed it to the secretary. The claim was called up at the regular meeting of the company, which would be in September following. Three of us met here, and were appointed by the board to look after the matter. I mean that I simply reported to the board the situation that appeared at the creek. The notice I received of the loss was from James Connors, who called me over the telephone from Manila, and on that call I went over. ’ ’
It appears, therefore, from the testimony, that the plaintiff gave to the defendant all the notice of the loss that was required of him under the terms of the policy, but that he did not make the proofs required of him by section 1744 of the Code.
The question then is: Did the company, by providing for proofs of loss in this policy (for its by-laws are made a part of the policy), waive the provisions of the statute relating to proofs of loss ?
■ It has been settled by a long line of decisions that any party to a contract may waive any of the provisions of the contract made for his benefit. It has been held by a long line of
Section 1744 of the Code, providing for proofs of loss, and defining what should be sufficient proofs of loss, grew out of a condition then confronting the Legislature, in which it appeared that some insurance companies had, in their policies, made such restrictions and limitations upon the right of the assured to recover that it became difficult in many cases to administer substantial justice; that the violation of these provisions, so made in the policy, often defeated policy holders in securing just claims. To meet this condition, the Legislature provided the character and kind of proofs that should be made by the other upon the happening of a loss, and no greater proof than was required by the statute could be exacted by the company, notwithstanding any provisions of its policy to the contrary. This provision does not, however, mean that the insurance company cannot contract for less than that required by the statute. It means that it cannot contract for more; and where, by its contract, it provides for certain proofs of loss, a compliance with the requirements of the policy waives the necessity of any other or greater proof.
In the case of Campbell v. Monmouth Mutual Fire Ins. Co., 59 Me. 434, the court said: “The plaintiff must show either such notice as has been stipulated by the insurance company, in their contract of insurance, or such as the statute of
The holding in this case is recognized in Dolbier v. Agricultural Insurance Co., 67 Me. 180, and Brock v. Des Moines Insurance Co., 96 Iowa, 39. We find, therefore, no disputed question of fact for the jury upon this issue.
Defendant’s witnesses testified:
‘ ‘ I have seen other storms as severe as this, but I would not say that I ever saw one more severe. ’ ’
Lunderville, a witness for th^e defendant testified: ‘ ‘ The storm was uniform. It did not come in gushes. It was a high wind. It was not a tornado; but a strong wind. It was cold. It started on the evening-of the 28th somewhere about 9 o’clock with rain. It continued raining for a while, and then it changed to sleet. The next morning the wind got high, and it started to snow, and blizzard like; an awful snow. It continued until the evening of the 29th.”
Under these circumstances, we think the burden shifted upon the defendant to show that the loss or damage was due to the snow, or hail, or sleet, or rain, or some other cause. This it did not attempt. The showing on the part of the plaintiff made a prima facie case, and, under the record, the court was justified in saying that the storm was the efficient and proximate cause of the damage.
This storm was described and treated in the case of Jordan v. Insurance Co., 151 Iowa, 74. This case was tried to the
The policy in the Jordwii case (as in this) does not confine the loss resulting directly from the windstorm, such as physical injury to the stock, or by throwing them to the ground, or by driving them against some obstacle, or the hurling of some obstacle against them. This would be too narrow a construction, and, even if it were susceptible to such construction, a construction should be adopted which is most favorable to the assured.
On the whole record, we find no error in the action of the court, and the cause is therefore Affirmed.