188 Iowa 506 | Iowa | 1920
The defendant is a mutual insurance association, organized under Chapter 5 of Title IX of the Code. A certificate of membership was issued to plaintiff, insuring his horses, mules, and colts against loss from lightning and other casualties, to the amount of |600, and his cattle against loss by lightning and other casualties to the amount of $500, for five years, beginning December 19, 1917. The plaintiff claims that a horse of the value of $100 and a cow of like value were struck by lightning about August 6, 1918, and, as defendant refused payment, he brought this action to recover the value of said animals, less $16.10, payable to defendant as his annual assessment. The defendant pleaded that, in the application for insurance, the amount recoverable on each animal was not inserted, — -that is, the application limited the insurance to $100 per head on horses and $75 per head on cattle; but neither “the $100 on horses” nor “the $75 on cattle” was inserted in the blank space left therefor in copying the application on the certificate.
“In furnishing proofs of loss under any contract of insurance for damages or loss of personal property it shall only be necessary for the assured, within 60 days from the time the loss occurs, to give notice in writing to the company issuing such contract of insurance accompanied by an affidavit, stating the facts as to how the loss occurred, so far as same are within his knowledge, and the extent of the loss, any agreement or contract to the contrary notwithstanding!”
Plainly enough, this precludes any requirement of proofs of loss other than those specified. Appellant argues, however, that this conclusion is obviated by Section 1743 of the Code Supplement. That relates to “any condition or stipulation in an application, policy or contract of insurance, making the policy void before the loss occurs,” or suspending it during default, and some other matters,
“Nothing herein shall be construed to change the limitations or restrictions respecting the pleading or proving of any defense by any insurance company to which it is subject by law.”
The section previously quoted is a part of the law, and, of course, in that event, the defendant might not set up, by way of defense, that the proofs of loss exacted by the contract, in addition to those provided by statute, constituted a defense. Moreover, Section 1744 of the Code Supplement, in fixing the time in which proofs of loss shall be furnished and suit begun, contains this clause:
“No provisions of any policy or contract to the contrary shall affect the provisions of this and the three preceding sections.”
In restricting the proofs of loss which might be exacted, the legislature evidently designed to avoid the defeat of insurance contracts by defining the proofs which may be required. Kinney v. Farmers’ Mut. F. & Ins. Soc., 159 Iowa 490. We are of opinion that the portion of the by-law quoted was invalid, and that the failure of the plaintiff to furnish the proof therein specified did not constitute a defense. There was no error in striking this portion of the answer. Doubtless, the questions here considered should have been raised by demurrer; but, if so, the motion may be treated as such. There was no error in sustaining the motion.
“Q. This spot that you observed on the hide, — was that caused by lightning, in your opinion?”
This was objected to, for that the witness had not shown himself qualified to express an opinion, and the objection was overruled. He answered in the affirmative. The testimony recited, if true, qualified the witness to answer; for he had stated that he had examined hides injured by lightning. The objection to his competency was rightly overruled.- He testified, on cross-examination, however, that he didn’t know personally that the hides he had examined were of animals killed by lightning; but there was no motion to strike his former answer, and, of course, what he testified to on cross-examination did not obviate the correctness of the previous ruling when made.
VI. Appellant also complains of the striking of a portion of the answer alleging that plaintiff failed to give the animals medicine, and was careless in their treatment, and that their death was due to his negligence, rather than to injury by lightning. We find no 'such order in the record. Nor was any evidence adduced, save that no medicine was administered, tending to support these allegations.
Exceptions were taken to four of. the instructions. The fifth instruction is in accord with the rulings of this court, with respect to the weight to be given expert testimony in response to hypothetical questions. The objection to the sixth instruction urged, that the evidence was not sufficient to warrant the submission of the issue as to whether the animals were struck by lightning, has been disposed of. The objection to the seventh instruction seems to be that, in enumerating the matters, the jury might consider that the court did not exclude all others. As the jury was sworn to decide the cause on the evidence adduced, such a caution was not essential. Exceptions to the eighth instruction have been disposed of. We discover no error, and the judgment is — Affirmed.