133 Iowa 205 | Iowa | 1904
The policy on which action is brought was executed in 1894, covering a two-story frame building for the term of six years. The defenses interposed, were, substantially, that the plaintiff had no insurable interest in the property at the time the policy was issued or at the time of the loss; that the plaintiff, in his application for insurance, falsely stated that he was the owner of the building and the land on which it was situated, and that in making such false statement, he violated a condition of the pol
I. As to the plaintiff’s insurable interest, the evidence on the last trial was similar to that on the first; and in view of what was said on the former appeal (113 Iowa, 652), it is sufficient simply to reannounce the conclusion then expressed that the evidence showed plaintiff to have such interest, both at the time the policy was issued and at the time of the loss, as to support a contract of insurance. The question whether plaintiff’s interest was of sufficient value to warrant the rendition of a verdict for the full amount of the policy, in view of a special provision with reference to the measure of recovery, will be considered in a subsequent paragraph.
II. It is conceded that plaintiff was not, at the time the policy was issued,, the fee-simple owner of the building and the land on which it was situated; but the evidence tended to show that he was in possession, with right of occupancy, under an oral contract with B. 0. Wente, the owner, and that the nature of his right was fully stated to Hannisch, the agent of the defendant who wrote the application; that the misstatements in the application as to the plaintiff’s interest were due to the failure of Hannisch to correctly put down the information given him by the plaintiff; and that the plaintiff, relying on Hannisch to correctly state the nature of this interest, was not aware of the erroneous statements made in the application. We do not feel called upon to reconsider what counsel concedes to be the established rule in this State to the effect that, if the facts are known to the company’s agent, a misstatement in the application will not avoid the policy, even though it contains the express stipulation that any such statement will render it totally invalid. The quéstion of fact as to the knowledge of Hannisch in regard to the true condition of
There being no competent evidence of a valid conveyance to Mrs. Schaefer, the court did not err in refusing to submit to the jury any question as to change of title. It is not claimed that the death of Wente and the acquisition by Mrs. Schaefer of an interest in the property as his heir constituted such change of title as to avoid the policy under the stipulation above set out.
It is evident that this instruction was erroneous, for under it three measures of damage were given and the jury was allowed to select whichever measure it saw fit, although the policy expressly limits recovery to the value of the interest of plaintiff at the time of loss. That is to say, if the building, when destroyed, was worth $800, or if it would cost $800 to replace it, after deducting from such cost the depreciation in value by reason of age and use, then a verdict for $800 with interest might be returned, although the jury should find that the value of plaintiff’s interest was less than $800. No doubt, in the absence of this specific provision limiting the recovery to the value of plaintiff’s interest, the plaintiff, having established an insurable interest, and having shown that the policy was not invalid by reason of any misstatement of the nature ¿of his interest, could recover the full amount of the loss to the extent of the insurance; but our attention is not called to ■ any authority warranting the court in disregarding the limitation of recovery to the value of plaintiff’s interest. However, if the jury properly found that by each of the three standards suggested by the instruction plaintiff was entitled to recover the full amount of insurance, then a verdict for that amount, with interest, etc., should be sustained. In answer to a special interrogatory, the jury specifically found the amount of
The contention for appellant is that plaintiff’s right of occupancy was only as tenant at will, and therefore of no pecuniary value; while the court seems to have taken the view that plaintiff had the right to use or rent the building indefinitely so4ong as he complied with the conditions, and therefore, that his interest was the present value of the aggregate amount which the plaintiff could have realized by renting the building for the full period of the life of such building, deducting the expense of repairs and taxes. Accordingly, evidence was received over defendant’s objection as to the average life of a frame building,, and as to the rental value of this building, and also as to the expense which plaintiff would necessarily incur in paying taxes and keeping up repairs. Our conclusion, briefly stated, is that
Nor do we see any merit in tbe contention for appellant that plaintiff’s interest was affected in any way by tbe length of term for which the policy was to run. On tbe other band, plaintiff certainly bad no more thah a life interest. He bad no interest which be could convey to another, or which on bis death would pass to bis heirs, or constitute assets in tbe bands of bis administrator. Tbe court- was right, therefore, in receiving tbe evidence as to tbe natural life of such a building, and as to tbe cost of repairs and tbe amount of taxes which plaintiff would, in tbe ordinary course of events, be required to pay, but was in error in not directing tbe jury that they should take into account tbe natural expectancy of life of plaintiff at tbe time of the loss, for to determine tbe value of his life interest such expectancy must necessarily be considered.
Other questions are argued, but they are not such as are likely to arise in the event of a new trial. What we have already said will sufficiently indicate the views of the court' as to the theory on which evidence should be received and the case submitted to the jury. Reversed.
Supplemental Opinion.
Thursday, February 7, 1907.
A rehearing was granted on one point only; i. e., whether the error in omitting to instruct the jury to take into consideration the plaintiff’s expectancy of life in determining the present net value of the use of the building was prejudicial to the defendant. Upon re-examination this inquiry must be answered in the negative. The plaintiff testified at the last trial, which occurred more than five years after the loss, and lie must have been alive when his petition for rehearing was presented two years later. At least he is presumed to have been. His actual expectancy of life, then, was at least as long a time as he has since lived. At any rate he lost the use of the building during that time. The undisputed evidence was that the reasonable rental value of the building, would have been from $240 to $300 per annum, and that the taxes, insurance, and repairs would amount to $60 per year. Taking this minimum rental, and the net income would amount to $180 per year, or $900 for the five years, and $1,260 up to the time of presenting the petition for rehearing. As the face of the policy was hut $800, this demonstrates that the present value of the use, computed as of the time of the loss, at least equaled the
In all other respects the opinion heretofore filed is adhered to. This changes the result, however, so that the judgment should be, and it is, affirmed.