Lewis v. Burlington Insurance

80 Iowa 259 | Iowa | 1890

Robinson, J.

— On the twentieth day of October, 1884, defendant issued to plaintiff two policies of insurance on the property in controversy. They were for the term of five years ; and one insured plaintiff against loss or damage by fire and lightning, while the other, the one upon which this action is founded, insured him against loss or damage by tornadoes, cyclones and wind storms. The tornado policy recites that it was issued “in consideration of a portion of the premiums written in the fire and lightning part of this policy.” The consideration recited in that is $75.80. Notes were given for the amount of the premiums. In June, 1885, the barn- was blown down, the dwelling-house was damaged, and the cattle were injured, by a tornado. The defendant denies liability under the policies, and alleges, by way. of defense, that, of the premium notes given for them, one was due and unpaid' at the time the loss occurred, and that, by the terms of the policies, they were suspended by such non-payment, and hence were not in force at the time of the loss. For a further defense, defendant alleges that plaintiff, in his application for insurance, stated and warranted that there were judgments against him only to the extent of twenty-five hundred dollars, and that the same would be paid, whereas there were judgments against him which amounted in the aggregate to five thousand dollars; that plaintiff permitted his property to be further incumbered, contrary to the terms of his insurance, by allowing a judgment to be taken against him on the twenty-fifth, day of April, 1885; also, that proof of loss was not made to defendant as required by the contract of insurance. This case was before this court on a former appeal. See 71 Iowa, 97.

i. instoaitob: notiee of loss. I. The policy in suit provides that “in case of loss or damage the assured shall forthwith give notice thereof to the> secretary, in writing.” Appellant complains that plaintiff was permitted to show that notice was sent to it, and not to its secretary. The complaint is without merit. The requirement for notice to the secretary must have been for the purpose of securing direct notice to defendant, rather than constructive notice through agents who were not charged with the duty of receiving such notice. The purpose of the requirement was fully accomplished by sending the notice to the company. Moreover, the answer admits the receipt of notice of loss about the tenth day of July, 1885, or within the time required by chapter 211, section 3, Acts Eighteenth General Assembly.

„ . . . damages: evidence. II. Plaintiff sold some of the injured cattle after they were injured. Appellant complains of the refusal of the court to allow it to show for what they sold. One of the cattle in question was soiq a year and a half after it was injured. The date of the sale of the others is not shown. The offered evidence was properly refused. The measure of damage was the depreciation in the value of the cattle caused by tlieir injuries, and that could have been ascertained by showing their value immediately before and immediately after they were injured. It was not claimed that the prices for which the cattle sold were their fair value immediately after the injuries in question were received.

8 _. pr00fs 1 of loss as evielenco» III. Appellant complains of the admission in evidence of the proof of loss which plaintiff furnished it on ^nth day °f July? 1885. It was held in Neese v. Insurance Co., 55 Iowa, 605, that such proof of loss was not competent evidence to establish the facts connected with the loss on the trial. It is claimed that it was introduced in this case to prove, by an indorsement made thereon by defendant, when it was received. If that was a matter in dispute, the proof and indorsement were proper to show the fact. The pleadings admit the receipt by defendant of the proof introduced in evidence “about” the date claimed to be shown by the indorsement; and no prejudice could have resulted from its introduction. We do not understand that it was offered or considered by the court to establish any disputed claim in the case.

4‘ aiTto house competency of witnesses, IY. Appellant insists that the court erred in admitting the testimony of a carpenter named Pillage in regard to the damage to the house and barn, on the ground that it was not shown that he knew their condition immediately preceding storm which caused the damages. The witness testified that he knew the premises in question; that he built the house in 1882, and the barn in 1883, completing it in 1884. They stood near each other. It is not claimed that they had been injured in any manner excepting by proper use and wear, and the ordinary effect of the elements, prior to the storm in question. The witness visited the place the spring preceding the storm, and again two weeks after it. Under the circumstances, we think, his evidence was competent. It is well known that property of that kind depreciates in value but little, from year to year, from the effects of ordinary wear and use, and exposure to the elements, and unusual damage will not be presumed. What we have said in regard to the carpenter applies, in substance and effect, to the testimony of the mason Covey.

_ _ ' premium notó notAttached . Y. In reply to the defense of defendant, that the plaintiff failed to pay his premium note, due before the loss in controversy occurred, at maturity, the plaintiff contends that the defense is not available, for the reason defendant failed to attach a copy of the note to the policy in suit. Appellant, however, insists that the contract of insurance included the two policies, and that a copy of the note was attached to the fire and lightning policy, which was referred tc in the policy in suit; hence, that the requirements of section 2, chapter 211, Acts Eighteenth General Assembly, were fully met. The policy in suit, as to terms and conditions, seems to be complete in itself, and has a copy of the application for insurance attached. The question now presented by appellant was decided adversely to its present claim on the former appeal, and that decision is the law of the case, and must stand. See 71 Iowa, 98. The determination of that question disposes of others discussed by counsel which depend upon it. ■

_._. sentatfonsitensnt of' YI. Appellant contends that the evidence shows that the representation of plaintiff, in his application for insurance, that the incumbrance on his lan<^ was twenty-five hundred dollars in judgments, was false. It appears that the judgments against plaintiff, as they appeared of record when the application was made, largely exceeded that amount; but it is shown that prior to that time large payments had been made on them, and that the amounts actually due were much less than the records appeared to show. There was also dispute as to whether the judgment of April, 1886,-became a lien upon the insured buildings by reason of the homestead character of the land upon which they stood. The various questions thus presented were considered by the court, and we cannot say that its findings and conclusion were not authorized by the evidence.

YII. Other questions discussed by counsel are disposed of by what we have already said, or are not of sufficient importance to receive special mention. We have examined them without finding prejudicial error. The judgment of the district court is

AKNIKMED.