178 Iowa 375 | Iowa | 1916
The defendant issued its policy of insurance to plaintiff on February 19, 1912, agreeing to indemnify him against loss or damages by fire, “$700 on farming utensils, cream separator, mowers, harvesters, reapers, corn binders, farm and garden tools (other than threshers, clover hullers, and engines) on the premises of the assured, . . . $500 on hay'in stacks on cultivated premises on farm herein described . . . situated (except as otherwise above provided) and confined to premises described in application, occupied by assured, . . . 440 acres, Sections 28, 29, 33, Township 81, Range 11, county of Iowa, state of Iowa.”
The plaintiff had purchased a new windmill, several years previous, and stored it in his corn crib until he could put it up. Stock scales had been taken down and stored in an old granary. Both buildings with their contents were destroyed, August 20, 1913. A few days previous, hay estimated at 30 tons, in a barn situated on what is designated the “ITall farm,” was burned. This Hall farm was operated under oral lease by the assured when the policy issued, and until bought by him, June 7, 1913.
*377 “That said policy was to cover and insure all hay that plaintiff might raise or produce on said sections and that said written insertion was made with mutual intention and understanding to cover their agreement as.aforesaid to cover all such hay.”
But the insured must be assumed to have known that the application was not the contract, and that the policy for which he was applying would state the terms of their agreement. The insured does not contend that any fact was misrepresented or that any'fraud was practiced on him by the agent. ITis contention is that, the agent having advised Yvhat the policy would insure, the company is estopped from asserting otherwise. To construe or interpret the policy issued or. to be issued is no part of the agent’s duty. In Dryer v. Security Fire Ins. Co., 94 Iowa 471, the insured testified that the agent told him that he could move his property to any place in the county by giving notice to the company, and, in denying liability for loss of property elsewhere than covered by the policy, the court, speaking through Robinson, J„ said the agent “appears to have been only a soliciting agent, and, if that was his true character, it was no part of his duty, and not within the scope of his powers, to contract for his principal, to construe'its policies, or to determine their legal effect. As he was a special agent, not clothed with any apparent right to. do more than to solicit insurance, and to perform such acts as were incident to that power, the plaintiff was charged with knowledge of the limitations of his agency, and was not authorized to give any contractual effect to the statements he made.' His principal was bound by the knowledge he had when the application was prepared and accepted, but not by statements he made outside the scope of his apparent powers.”
In Cornelius v. Farmers’ Ins. Co., 113 Iowa 183, 184, the agent had represented that for an additional premium he would make the application so that the property would be insured when vacant, and Yve there said:
*378 “It thus appears that tlie application contained no misstatement of any existing fact or past transaction, nor did it omit any. What was said related solely to an anticipated, though not settled, use of the property. It was an arrangement as to conditions of the policy, with which a soliciting agent had nothing to do, rather than a representation of the existing or past conditions' of the property to be insured. That such an agent has no authority to make a binding contract for insurance, or what shall be the provisions of a policy, is too well settled to require /any citations. The scope of his authority is limited to taking applications, and as, within this, it is his duty to see that the condition of the property is truly and fully disclosed when he undertakes to prepare them for the assured, the company may not take advantage of omissions or misstatements of facts or conditions affecting the risk. Fitchner v. Association, 103 Iowa 280. But whatever he may say as to the effect of the policy or what it shall cover, or of its conditions, is mere opinion on his part, pertaining to matters wholly without the scope of his employment. Talks and agreements in reference to matters of future performance are merged in, and presumed 1o be expressed in, the policy, which, as in the ease of other written contracts, becomes effective as the consummation of their wishes and intentions by its delivery on the part of the company and acceptance by the assured. Moore v. Insurance Co., 72 Iowa 416; Baldwin v. Slate Ins. Co., 60 Iowa 497; Stephens v. Insurance Co., 87 Iowa 283; Ostrander, Insurance, 186. Nor can anything he may impart concerning, a future contingency operate as an estoppel against the insurer. This is: First, because he is given no such authority; and, secondly, for tlie reason that the doctrine of estoppel is never applied save where the representation relates to a present or past fact, or state of facts, unless it has reference to an intended abandonment of an existing right, upon which another has relied.”
“I do not think it essentially necessary to a stack that it should be erected out of doors. It is enough if the .material be collected direct in the field and ‘stacked’ in a build-
“The term ‘stack’ has a well-defined meaning, and cannot be said to include grain in a mow in a barn. ’ ’
Nor do we think that “hay in stack” is susceptible to being construed as hay in the mow of a barn. Such is not the ordinary meaning of the expression. No one would think of hay stowed away in a barn as being a stack. The court rightly denied recovery for the hay burned.
II. ,Was the windmill or scale a farm tool or farming utensil? “Tool” is defined in Webster’s Dictionary as:
3. Insurance • fire “farminguitensils' “An instrument of manual operation, as a hammer, saw, P^alie> fiL® or the like, used to facilitate mechanical operation, as distinguished from an appliance moved by machinery; the instrument of a handicraftsman or laborer at his work; an implement; as, the tools of a joiner, smith, shoemaker,” etc.
A similar definition is to be found in the Century Dictionary. Evidently, by the words “garden tools” are meant instruments or devices movable in character and operated by hand, or possibly by other motive power in the performance of work or in doing work in the garden or on the farm. The word “utensils” is much broader in meaning, though it may be applicable to many implements designated “tools,” in common parlance. The Century Dictionary defines “utensil” as:
‘ ‘ An instrument or implement, as, utensils of war; now, more especially, an instrument or vessel in common use in the kitchen, dairy or the like, as distinguished from agricultural implements and mechanical tools.”
Webster’s Dictionary says it is:
“An instrument or vessel, especially one used in the kitchen or in a dairy. ’ ’
The Supreme Court of North Carolina, in Elliott v. Posten, 57 N. C. 433, said that the word “utensil” will embrace
In Laporte v. Libby, 114 La. 570, the court expressed the same view:
“The word ‘utensils’ more especially means an implement or vessel for domestic or farming use. See Standard Dictionary, verbo. As used in Civil Code, Article 3259, ‘utensils’ is a translation of ‘ustensilesj’ used in Article 2102 of the Code Napoleon. This word, 'in France, has been held to include a threshing machine. Fuzier Herman, Code Civil, Yol. 4, -p. 873. In French jurisprudence the word is used as synonymous with ‘ agricultural instruments, ’ whatever may be their nature. Baudry Lacantinerie, Droit Civil, Des Privileges, Vol. 1, p. 445, No. 472. Laurent says that the word ‘ustensiles’ has a very extended meaning. It has been held in other states of the Union that ‘mowers’ and ‘combined harvesters’ used by debtors for necessary farm work are within the meaning of the term ‘farming utensils or implements,’ as used in exemption laws. . . .We are of the opinion that a steam thresher is clearly within the term ‘ farming utensils, ’ as used in Civil Code, Article 3259. ’ ’
A combined harvester was held to be a utensil in In re Estate of Klemp, 119 Cal. 41, and a thresher was so found to be in Spence v. Smith, 121 Cal. 536. In Lahn v. Carr, 120 La. 797, it is said that a steam engine used in connection with a pump for irrigation, with a thresher, and with machinery for cultivating a crop of rice, and not shown to have been used for any other purpose than the cultivation and harvesting of such crop, is a “farming utensil” within Civil Code, Art. 3259, on which the privilege of the vendor is superior to that of the lessor of the land, and this whether the engine was bought as part of the pump, or of the thresher, or at any other time and from any other source.