35 Iowa 174 | Iowa | 1872
Lead Opinion
The covenant bound plaintiff to keep the pipe “ well secured.” He was obligated thereby to keep it in such condition, and to exercise toward it such care as a man of ordinary prudence would exercise for the protection of his property. The defendant was protected by this covenant from the effects of defective pipes and stoves. It did not ■bind plaintiff to keep them always up and constantly in use. He could, if his comfort or convenience so required, remove them and dispense with their use. This would not increase the hazard of the risk, and it was therefore not in violation of the conditions of the policy. The contract was entered into with the implied assent of defendant that plaintiff should possess this right. Therefore,-'if in its exercise the property was lost, defendant is liable. Does the act of plaintiff'come under this rule? The pipe was removed preparatory to removing the stove; the use of both were intended to be dispensed with. The stove was put in a condition not to be used. Its use was just as much intended to be dispensed with as though it had been removed to another room or into some out-of-the-way place usually set apart as the receptacle of such things when not in use. Had it been so removed and some one, through negligence and thoughtlessness, should have kindled a fire therein resulting in the destruction of the property, the defendant would have been liable. And-this would have been so, as we shall presently see, if, the act had been done by plaintiff without fraud or intention to set the house on fire; or without such gross negligence as one with ordinary prudence under no circumstances would fall into.. The covenant under consideration does not bind plaintiff to keep the pipe well secured when not in use.
These views do not give assent to the doctrine that the covenants and warranties of plaintiff may be disregarded and not literally performed. But we simply maintain that the act of plaintiff in removing the pipe was not covered by the warranty. As all covenants between contracting parties, the undertaking of plaintiff to keep the stoves and pipe secured must be applied to the subject and time within the contemplation of the parties. It will not be extended beyond them to the prejudice of the assured. We cannot so construe it that it will impose restrictions which are unreasonable. Peterson v. The Mississippi Valley Ins. Co., 24 Iowa, 494; Loud v. Citizens' Mutual Ins. Co., 2 Gray, 221; Sayles v. North Western Ins. Co., 2 Curt. C. C. 610 ; Turley v. North Americcm Ins. Co., 25 Wend. 374; Townsend v. Worth Western Ins. Co., 18 N. Y. 168; Gloucester Manufacturing Co. v. Howard Fire Ins. Co., 5 Gray, 497; Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20; Gates v. Madison Ins. Co., 1 Seld. 469; Hide v. Bruce, 3 Doug. 213; Dobson v. Sotheby, 1 Moody & Malkin, 90.
We conclude that plaintiff’s warranty did not forbid the temporary removal of the pipe at a time the stove was not in use, such restriction not being within the contemplation of the parties.
II. We are now brought to inquire as to the liability of defendant for the negligent acts of the insured and his
It has been held that this rule will not excuse extreme, reckless, and inexcusable negligence on the part of the assured, the consequence of which must have been palpably obvious to Mm at the time. Chandler v. Worcester Mutual Fire Ins. Co., 3 Cush. 328. But this decision cannot be regarded as in conflict with the current of the authorities. The gross degree of negligence, and its inexcusable character, coupled with the knowledge of its certain effects, ought, it would seem to us, to raise a presumption that the party intended the obvious and necessary consequence of his act, which at the time were apparent to him.
The principles above stated, are substantially embodied in instructions given to the jury; others requested by defendant, and presenting different doctrines, were refused by the court. These rulings are approved, and need not be further noticed.
III. The plaintiff was permitted, against defendant’s objection, to show by his own testimony that it was the custom in his house, in the summer time, to take the stove, from which the fire was communicated to the house, -out of the room where it was used. Mrs. McKay was
IY. The jury were directed by the court to the effect that if plaintiff delayed bringing suit until after the expiration of six months in consequence of inducements held out by defendant’s officer, causing him to believe that the loss would be paid or adjusted without suit, this would operate to remove the bar created by the condition of the policy requiring an action thereon to he brought within six months after the loss. This instruction is clearly correct. A course of conduct on the part of defendant or representations of its officers which would give reasonable ground upon which plaintiff did in fact base the belief that his claim would be settled, would estop defendant to set
VIII. Objections are urged to one of the questions propounded to the jury by the court. No exception was taken to it in the court below; it cannot, for that reason, be reviewed here.
IX. It is insisted that the verdict is hot supported by the evidence. We think otherwise. The evidence authorized the jury, in the intelligent and honest exercise of judgment, to find for plaintiff.
The defendant’s counsel present the case upon twenty-four assignments of errors, which they have argued under seventeen points. We have not separately discussed each point, believing that all could be sufficiently considered in the manner we have adopted in treating the case. Those not explicitly referred to have been properly considered, and we deem them sufficiently answered in the foregoing
Affirmed.
Dissenting Opinion
dissenting, -f I am unable to assent to the views expressed in the first paragraph of the foregoing opinion. The plain meaning of plaintiff’s agreement is. that the stoves and stove-pipes in the house insured were well secured, and that he would keep them so, in order to guard against damage to, or destruction of, the property insured by fire from that source, while using the stoves in his house for ordinary purposes.
The evidence shows that a stove in its usual place in the house was used in the ordinary manner by plaintiff’s wife, who had authority so to do, building a fire therein to warm the room, and that when the stove was so used the pipe thereto was not “ well secured,” in consequence of which the house was destroyed by the fire communicated from the stove. This, in my opinion, is a most palpable breach of the plaintiff’s agreement which releases the defendants from their obligation to pay any portion of the insurance. Upon this ground the judgment of the court below should, in my opinion, be
Reversed.