241 N.W. 414 | Iowa | 1932
The appellee had issued to him by the appellant corporation a hail insurance policy covering loss by hail on the corn crop on a stated number of acres on his farm in Ringgold County. The appellant corporation had also issued to Clyde Richardson, son of appellee, a similar policy covering loss *31 by the same cause on a stated number of acres of corn on his farm in Ringgold County, which policy and claim thereunder had been assigned to the appellee. The appellee commenced action to recover for loss sustained under the two policies. There are no questions raised regarding the validity of the policies or notice of loss.
[1] On the night of July 11, 1928, while said policies were in full force and effect, a hailstorm occurred which did considerable damage to the growing corn on the acreage described in the policies. The parties appear to have had some negotiations toward settlement of the loss, but could not agree as to the extent of the loss. The policies provided that when a partial loss occurred an account of the crop harvested should be kept and a statement thereof in a prescribed form must be furnished the insuring company on or before the 15th day of December of the year in which the partial loss occurs. Such statements were not furnished under these policies until after December 15th. It conclusively appears that prior to the 15th day of December, representatives of the company had unequivocally refused payment on the claims. The rule is well established that a denial by the insurer of all liability under the policy will operate as a waiver of the provisions requiring notice and proofs of loss, or any defects in notice of proofs. Joyce on the Law of Insurance, Vol. 5, Section 3373. Washburn-Halligan Coffee Co. v. M. Fire Ins. Co.,
[2] Under Point 2, the appellant claims that the Court's instruction regarding the measure of recovery was not consistent with the provisions of the policies. To compare the particular instruction given with the printed provision of the policy we set them out in parallel columns:
"Provisions of Policy "Instruction
"For the purpose of obtaining "No. 10. The policies sued this insurance and securing a upon contains the following basis upon which all adjustments clause as a part of the of loss shall be made it by-laws which are binding is agreed that the *32 full value of each acre of alike upon the assured crop insured under this policy and the defendant to wit: shall be the amount of `The amount written in insurance carried on each the face of a policy acre; such amount to be divided by the number of determined by dividing the acres of crop grown in amount of insurance any season on the land represented by the policy by covered by the policy the number of acres of crop shall constitute the covered by such policy. Sec. amount of insurance on 6 By-laws: The amount written each acre that season and in the face of a policy the amount due from this divided by the number of acres Association should a of crop grown in any season on total loss be sustained. the land covered by the policy When there is only a shall constitute the amount of partial loss, the member insurance on each acre that sustaining such loss season, and the amount due shall be entitled to from this Association should recover such proportion a total loss be sustained. of the amount of When there is only a partial insurance on each acre as loss, the member sustaining that portion of the crop such loss shall be entitled to destroyed on each acre recover such proportion of the shall bear to the whole.' amount of insurance on each Plaintiff does not claim acre as that portion of the a total loss but only a crop destroyed on each acre partial loss under either shall bear to the whole. policy in suit. Applying the rule above given for partial loss to the policy of Will Richardson who carried $1000 on corn and $200 on corn fodder you will divide sums by the total number of acres you find Will Richardson had in growing corn covered by his policy and the result will be the amount of insurance per acre he had on each separate acre of corn and corn fodder. Plaintiff is only entitled to recover on his *33 policy that portion per acre, which the per cent of damage per acre would bear to the amount of insurance per acre. This percentage of damage per acre must be established by plaintiff by a preponderance of the evidence as having been caused by a hailstorm on July 11, 1928. [The Court applied the same rule to the policy issued to Clyde Richardson which need not be repeated here.] It is not necessary that you should consider either market values of corn or corn fodder at all as the parties have by their contract fixed the values at which said corn and fodder were insured, and the court permitted such evidence only for the purpose of aiding you in determining the extent of the per cent of damages, if any, sustained."
It may be asserted with good support that the provision of the policy is ambiguous in that there is some doubt as to what the last word "whole" refers. The Court has, in our opinion, placed a construction upon the provision which is most favorable to the appellant in that its instruction was that the word "whole" had as its antecedent, the amount of insurance on each acre. The jury was instructed to find the amount of insurance per acre by the rule found in the policy provision. It was then instructed to find from the evidence the percentage of damage to the crop per acre and from these factors, the amount of loss was *34 to be established, which, with interest from a given date, was to be the amount of recovery. It appears that the jury followed the Court's instruction in determining the amount to be awarded the appellee. It is our opinion that the instruction was sufficiently clear to guide the jury of non-expert mathematicians and technicians to a correct determination of the amount of recovery.
Several other points have been raised by the appellant which refer to alleged errors in the admission of evidence, cross-examination of witnesses, and misconduct of counsel. While it is true that some alleged errors crept in during the rather heated prosecution of the suit, it is our opinion that they were non-prejudicial in character. The full arguments of the counsel on both sides have been presented in the appellant's abstract of record. The Court said, in overruling a motion for a new trial:
"Perhaps there were some things in the argument that might just as well have been left unsaid, yet in the heat of a trial and the earnestness with which counsel were presenting this case they may have said some things which might just as well have been left unsaid, and the same might be true if you consider all of the arguments of counsel for the defendants."
With this we heartily agree, but at the same time the errors complained of were not of such magnitude to effect the reversal of the verdict rendered by the jury. In view of the foregoing, we conclude that the verdict rendered should stand, and it is affirmed. — Affirmed.
All justices concur.
