149 Iowa 137 | Iowa | 1910
A certificate of insurance was issued by defendant to Frank Knapp, June 13, 1901, and he, died February 5, 1902. The plaintiff is the beneficiary named, and in this action, begun August 29, 1902, demands the indemnity stipulated. The cause has been here twice before. On the first appeal, defendant’s contention that error had been committed in not directing a verdict in its favor for that the claim had not been submitted to, arbitration was denied, on the ground that no such issue had been raised in the pleadings. 128 Iowa, 566. Upon remand to the district court, October 8, 1906, defendant amended its answer by averring the omission of plaintiff to submit the liability of -■ defendant to arbitration as required by the certificate of insurance. To this plaintiff replied by general denial, and alleging that defendant had not demanded arbitration or appointed arbitrators, and that the provision exacting arbitration was illegal. On the second appeal, this provision was held to be valid, and error to have been committed in not directing a verdict for defendant, because of there having been no proof that plaintiff complied with the condition of the certificate exacting arbitration as. a condition precedent to the maintenance of the action or waiver thereof, which must have been pleaded if relied upon. 139 Iowa, 136. When the cause was again remanded to the district court, plaintiff, on September 15, 1908, filed an amendment to her petition, alleging that in June, 1902, she requested defendant to arbitrate her claim as by the certificate provided, and that this it failed and refused to do, and thereby waived the right to arbitration. By agreement, this amendment was treated as an amendment to the reply, and defendant moved that it be stricken because filed too late, and the ruling by which such motion was denied is the alleged error argued.
All these issues were fairly for the jury; and, though we might not have reached the conclusion it did, we are not disposed to disturb the verdict. — Affirmed.