Lead Opinion
The policy of insurance upon which the action was brought, was issued by the defendant to O’Leary & Plant, on the twenty-fourth day of May, 1888. Afterward Plant assigned his interest in the policy to O’Leary & Bro. This assignment was assented to by the defendant, by the proper indorsement in writing as required by the policy. The property insured consisted of a stoct of farm implements, wagons, buggies and other merchandise. The property was destroyed by fire in December, 1891. After the fire, O’Leary & Bro. assigned their claim against the defendant to the Staver & Abbott Manufacturing Company, one of the creditors of the insured. These transfers have no particular significance, more than that, the action appears to be .maintained for the benefit of the last-named company. The policy provided that the contract of insurance should become void if the assured contracted other insurance on the property, without consent in writing indorsed on the policy by the company. And it further provides that no agent of the company has any authority to waive, modify, or erase any of the printed conditions of the contract. It appears that O’Leary & Bro. afterward insured the property in other companies, to the extent of one thousand five hundred dollars, without complying with the foregoing provision of the contract. The policy was not sent to the general office' of the company
The plaintiffs claim that they procured the consent by writing a letter to the company, and that they received a letter in reply, from the secretary, consenting to the additional insurance. Neither of these alleged letters, and no copies thereof, were produced on the trial. O’Leary and his brother both testified, as witnesses, to the contents of the alleged letters. The secretary of the company testified that he neither received nor answered such a letter. It is contended in behalf of appellant that, although there maybe a conflict in the evidence as to whether a letter was written and answered, the evidence did not show a compliance with the contract on the part of the plaintiffs. This is the main question in the case, and we think the court should have sustained objections to the evidence, and should have instructed the jury that, under the undisputed facts in the case, the plaintiffs were not entitled to a verdict, because they did not comply with their contract. There is no principle of law which sanctions any such failure to abide by a contract of insurance. It will be observed that this question does not involve a waiver of proofs of loss, or of holding the company liable for the acts of its
Rehearing
Supplemental Opinion on Re-hearing.
Appeal from Iowa District Court. — Hon. S. H. Fairall, J-udge.
The policy of insurance upon which recovery is sought in this action was issued to O’Leary & Plank on May 24,1888. Thereafter, and with the consent of the company, as by the policy provided, Plank assigned his interest in the policy to O’Leary & Bro. The policy covered a stock of farm implements,
This cause was heard at the January term, 1896, and an opinion filed on February 7, 1896, reversing the judgment of the lower court. A re-hearing having been granted, and the case again argued, it is now before us for determination. In the former opinion but one question was considered, as we then deemed it the controlling question in the case. On a re-examination of the case, we are still of the opinion that no other question argued requires special ^consideration. The policy provided that: “This contract shall be void and of no effect unless consent in writing is indorsed hereon by the company in each of the following instances, viz.: If the assured shall now have, or hereafter make or pro-sure, any other contract of insurance, whether valid or not, on property conveyed in whole or in part by this contract. * * * No agent of this company has any authority to waive, modify, erase, or strike out any of the printed conditions of this contract. And it is mutually understood and agreed by and between this company and the assured that this contract is made and accepted upon and with reference to the foregoing terms, conditions, stipulations, and restrictions, all of which are a part of this contract.”