83 Iowa 586 | Iowa | 1891
I. It is urged that the assignments' of errors are insufficient, and should not be considered. One assignment fairly presents the question of the correctness of each instruction given by the court, and is sufficient.
, The plaintiff was the holder of a policy of insurance against loss by fire, issued by the defendant company. The time of insurance, by the terms of the policy,, began April 18, 1889, and terminated April 18, 1890. The property insured was destroyed by fire July 2,1889. The premium for the insurance was settled by note due July 1, 1889, and was unpaid at the date of the fire. The policy contains the following provision: Fifth. “That no insurance, whether original or continued,, shall be binding until the actual payment of the premium, either in cash or note given therefor. Where' a note or notes have been received, in whole or in part,, for the premium named in this policy, or renewal of the same, and the assured or his assigns fail to pay the same, or any installment, or any part thereof, at the time or times specified in such note or notes, .such failure shall immediately terminate all liability of this-company under this policy, and the company shall not. in any case be liable for any loss or damage that may occur at a time when any such note or notes, or any installment therein, or any part thereof, shall be overdue and unpaid.” Chapter 210, Laws of 1880, provides: “Sec. 2. Within thirty days prior to, or at any time after the maturity of any note or contract, whether assessable, or where the time of payment is fixed in the contract, given for the premium on any policy of insurance, such company or association may serve a notice in writing upon the insured that his note, or an
On June 1, 1889, the defendant company deposited 'in the post-office at Des Moines, for registration, a written notice, in conformity to such provision of the law, addressed to the defendant at Harlan, Iowa. It does not appear that by due course of mail this notice would have reached its destination thirty days before the fire occurred. The main question in the case is as to the validity of the policy when the fire occurred, •July 2. The court gave the following instructions, of which complaint is made: “The notice required by ■statute may be either personal notice or constructive notice. The defendant claims he gave the plaintiff constructive notice; that is, he sent a notice by registered letter, as required by law. There is no dispute as to the fact that he sent the notice marked ‘S’ by registered letter. When the defendant sent it, and when the service thereof was completed, are, however, controverted points. And in this connection you are instructed that the service of notice by registered letter is not completed until, by due course of mail for registered matter, it should be received at the office of its destination.” The validity of the notice depended upon a completed service of the notice, and the court in another instruction said to the jury that, if it found
We are then to determine whether, to render such a service complete, there must be time after the-letter is properly addressed and registered in the post office for it, by due course of mail, to reach its destination, that is, the office of its destination. If the language of the act was that the service should be made by mail, by letter, or by registered letter, there .might be more reason for holding that there must be time-after mailing for it to reach its. destination. In McKenna v. Insurance Co., 73 Iowa, 453, it is held that the service is complete before the letter is delivered to-the assured, showing that the law contemplates something less than a personal receipt of the letter. The statute, as we understand, specifies the acts that constitute the service; and it is the service, arid not notice, that gives rise to the operation of the statute. The service may be “by registered letter addressed to the assumed at his post-office adckxss named in or on the policy.” The italicized words are adverbial, and fix the manner of the service. With a careful, examination, we find no case in which, besides the acts which shall constitute the service, where it is substituted, that time is held essential to its completion. ’ The enactment is the sole authority for such a service, and we can neither add to nor take from its requirements. The substituted service of an original notice, by leaving a copy with a member of the family when the defendant cannot be found in the county, is complete when the notice is properly left, and no time is held necessary to elapse because of the known absence of the defendant from the county. In such a' case, the service is complete when the acts specified as constituting the service are
We find no other questions in the record that we .need to consider. Reversed.