197 Iowa 1244 | Iowa | 1924
I. After the case was commenced, and before trial, plaintiff Louis Kroloff amended the petition, alleging that the diamond in question was the property of his wife, Fannie Kroloff, and she was joined as plaintiff in the suit. The petition, in substance, alleged issuance of the policy covering the residence and property of plaintiffs; that, on January 22, 1921, the residence of plaintiffs was entered by a burglar or burglars, and that said burglar or burglars stole from said residence a diamond and some miscellaneous articles; that immediate report was made to the company of the theft, and also to the police department of Council Bluffs; that the local agent reported the burglary to the home office of the company; that the company made investigation and secured full knowledge of the circumstances, and waived filing of loss on its form of proof; that the diamond stolen was worth in excess of $1,000.
The answer denied every allegation of the petition, and al
Another provision of the policy was alleged, as follows:
“Any claim under this policy shall be made forthwith to the home office of the company, in the manner required by proof of loss form in use by this company, and shall be subscribed and sworn to by assured. The said form will be delivered to the assured upon demand.”
■ The answer further alleged that the terms of the policy with respect to filing proof of loss had not been complied with.
Plaintiffs replied, averring that defendant was estopped from pleading or proving any failure to furnish proof of loss, by reason of the fact that it sent its agent to investigate the loss, and investigation of the loss was made by defendant, and no objections were made that proof of loss was insufficient; and that, by reason of such actions on the part of the defendant, there was waiver of proof of loss, strictly as provided in the policy.
II. On the trial, plaintiffs, Louis Kroloff and Fannie Kroloff, testified that Fannie Kroloff was the owner of the ring in controversy, and to the loss of the ring and the circumstances • attending the loss; that F. C. Hendricks & Son, local agents of defendant company, were immediately notified of the burglary and the loss of the diamond. Louis Kroloff testified that, upon discovery of the loss, he immediately applied to Floyd Hendricks, of the local agent firm, for a form to make out proof of loss, and that Hendricks said, “All right, we will make one out right now; ’ ’ that proof of loss was then made out by Hendricks, and he signed it; that Hendricks said he would send it in to the company.
Floyd Hendricks, called by defendant, testified that he represented defendant company as local agent, soliciting and writing insurance for the company; that Louis Kroloff had told him of the loss of the diamond, and that he wrote down Kroloff’s
At the close of plaintiffs’ testimony, defendant moved for a directed verdict, on the grounds that the policy provided that the company should not be liable for any loss unless assured showed conclusively that the loss was occasioned by burglary, larceny, or theft, and that the mere disappearance of property insured should not be deemed evidence that the loss was occasioned by burglary, larceny, or theft; and that the evidence was insufficient to show that the loss alleged to have occurred was occasioned by burglary, larceny, or theft. The motion was overruled, and no exceptions were taken to the ruling. At the close of all the evidence, the motion to direct verdict was renewed and overruled, and no objections were taken to the ruling. The ease was submitted to the jury, and verdict was returned in favor of plaintiffs.
III. Appellant assigns errors relied upon for reversal, based upon insufficiency of the proof of loss; errors in the admission and exclusion of testimony; rulings on motions made during the trial, including motions to direct verdict; assignments attacking each paragraph of the instructions; error in not granting a new trial; and especially, error in submitting the ease to the jury and not afterwards granting a new trial on the ground that no recovery can be had upon the policy because the evidence does not show conclusively, by direct and positive testimony, that loss of the diamond in question was occasioned by burglary, larceny, or theft.
The policy provides that:
*1248 1. INSURANCE: proofs of loss: waiver of sworn proofs. *1247 “Any claim under this policy shall be made forthwith to the home office of the company in the manner required by proof*1248 of loss form in use by tbe company, and shall be subscribed and sworn to by the assured. The said form shall be delivered to the assured upon demand. ’ ’
Appellees introduced testimony to show that Hendricks, local agent of the company, immediately after the loss of the diamond was discovered, was notified of the loss; that Louis Kroloff requested Hendricks to furnish him a blank on which to make out proof of loss, and Hendricks thereupon said, “All right, we will make it out right away;” that proof of loss was made out and left with Hendricks, to be sent to the company; that on the form used there was no affidavit, and the statement was not sworn to. The record does not disclose the exact form of blank in use by the company. Hendricks, agent of the company, testified that the form on which he made out the statement of loss for Kroloff was made out on a form used by another insurance company, which form was similar to the one in use by defendant company; that he sent to the company the proof made out; and that it was received by the company.
It appears without dispute that, upon receipt of the statement or proof made by appellees and received by the company, the company sent out a special agent to investigate the matter of claimed loss, and that said agent and Hendricks went to the premises and made an investigation. It also appears that ap-pellees notified appellant of the claimed burglary. The investigation was made by the company, through its agents, in pursuance of the statement furnished by appellees, and no other or further statement, notice of loss, or proof of loss was requested by the company. The statement or proof furnished by appellees was introduced in evidence, without objection.
The court, in instructions, stated to the jury the claims of the parties respecting proof of loss; that the burden was on plaintiffs to show that they furnished proof of loss, as required by the policy, or that defendant accepted the proof furnished, without objection thereto, and waived forfeiture of the policy by its acts and conduct. He also submitted to the jury the question of fact as to whether or not defendant acquiesced in Exhibit 9 (the statement furnished) as a sufficient compliance with the requirements of the policy relating to claim of loss, and whether
Complaint is also made of the instructions submitting the question to the jury. We are precluded from review of any claimed errors in the instructions given, as hereinafter shown. Whether right or wrong, the instructions given are the law of the case. No objections or exceptions were taken and preserved to the instructions, as provided by statute. No instructions were requested, and no errors properly assigned as to the admission and exclusion of evidence. However, in any event, the company having made investigation of the premises where the claimed loss occurred, and the facts and 'circumstances, through its agents, and having demanded no further proof of loss than that furnished, form of proof of loss in strict compliance with the policy was waived. Ruthven Bros. v. American Fire Ins. Co., 102 Iowa 550; Heusinkveld v. St. Paul F. & M. Ins. Co., 106 Iowa 229; Lake v. Farmers’ Ins. Co., 110 Iowa 473; Horwitz v. United States Fid. & Guar. Co., 95 Wash. 455 (164 Pac. 77).
“Unless the assured can show conclusively that loss was occasioned by burglary, larceny or theft, and the mere disappearance of property herein insured shall not be deemed as evidence that the loss was occasioned by burglary, larceny or theft. ’ ’
Counsel for appellant cites cases holding, in effect, that no recovery can be had upon a policy indemnifying against loss by burglary, theft, or larceny where the evidence merely
It has been held that circumstantial evidence surrounding the loss of property may be sufficient to carry a case to the jury as to whether the loss was occasioned by burglary or theft, even where the policy provides, as in the instant case, that it must be shown conclusively that the loss was occasioned by burglary or theft, and that mere disappearance of the property insured will not be sufficient. Emery v. Ocean Acc. & Guar. Corp., 209 Mich. 295 (176 N. W. 566); Miller v. Massachusetts Bond. &
“To furnish direct proof that an article of the character involved here has been stolen, is usually attended with much difficulty. Nothing has been called to our attention in the policy which would prevent the fact being shown by circumstantial evidence. If it were competent for plaintiff to establish the fact that it had been stolen by circumstantial evidence, we think the testimony was sufficient to support an inference that the pin had been stolen.”
In Miller v. Massachusetts Bond. & Ins. Co., supra, it was contended that the words “direct and affirmative evidence” meant proof that someone had seen the commission of the theft. The court held that such a strained construction would only make the policy frivolous and ineffective; and it was held that the circumstances of the loss were such that it was a question
V. Appellant complains of rulings of the court overru1in~ motions to strike amendments to the petition and the reply an~ amendthents thereto. No exceptions were taken to the rulings However, the motions were without merit.
We have carefully examined the entire record, and have in the above discussion considered all the questions that may be reviewed under the record, and thud no error.
Results in afIirmance.-AffirrnecZ.