Stevens v. Citizens' Ins.

69 Iowa 658 | Iowa | 1886

Reed, J.

1. mure insuroííwüceoiCr lty oi^djíSting agent. I. We are of the opinion that the right of action R not defeated by plaintiff’s failure to give the written notice of the loss required by the policy. x J 1 •' ^ie aSent wFo assumed to waive that requirement Fad full authority to do whatever was necesSary 'be ¿one jn the adjustment of the loss, lie was informed of the occurrence of the ffre by the local agent of the company at Burlington, and he went to the scone of the fire for the purpose of investigating the ease, and, while engaged in the investigation, he informed plaintiff and intervenor that, as he was on the ground, the written notice need not be given, but directed them to prepare and forward to him the proofs of loss, which they afterwards did; and he refused to pay the loss on the sole ground that the policy was defeated by the existence, at the time it was issued, of the Glens Falls policy. Being clothed with full authority to adjust the loss, and to do whatever might be necessary to be done in its adjustment, he necessarily had the power to determine whether the notice should be required or not, and having determined that it should not be required, and having so advised the other parties, who have acted upon his statement, his principal is bound by his action. It makes no difference, we think, that the policy provided that the ■ company should not be bound by the acts or declarations of its agents-not contained in the policy; for the authority to waive that provision is necessarily included in the power conferred upon him with reference to the adjustment of the loss, and he did in effect waive it. That the provision requiring the notice of the loss may be waived by the insurer is well settled by the authorities. See Edgerly v. Farmers’ Ins. Co., 48 Iowa, 644; Wood, Ins., 699.

B _. asiunsuíiher Sot1violated oi void policy, II. We are also of the opinion that the policy was not defeated by the existence of the Glens Ealls policy. That policy had ceased to be a binding contract of insurance before defendant’s policy was issued. The sale by Lane of his interest in the property was such a ehánge of the title, as under the provisions of the contract, avoid the policy. Hathaway v. State Ins. Co., 64 Iowa, 229. Perhaps it could be said that the change of title had the effect only to render the policy voidable at the election of the insurer, and that, under the pecm liar provision in defendant’s policy, which is against other contracts of insurance, whether valid or not, the contract was defeated. But, however that may be, we are of the opinion that, under the provision of the Glens Ealls policy against the removal of the property, all liability of that company terminated when the property was removed from the building in which it was situated when the policy was issu'ed. It was expressly provided that the company should not be liable for loss or damage when the property was at any other place.or location than that designated in the policy. The removal of the property to another building, without the consent of the company, did not have the effect simply to render the policy voidable at its election; but by the express terms of the pror vision its liability for the risk was terminated by that act. When, therefore, defendant’s policy was issued, there was nt>: other contract of insurance in existence. The policy of the other company was as certainly terminated by that act. as it would have been by the expiration of the time for which it was given.

_ pon on poney by assured: of^benefieb-11 üon of time'in policy. III. -The policy in suit is a contract between plaintiff and defendant. The provision, however, that the loss or damage on the machinery should be paid to the intervenor as his interest might appear, was for the 1 0 1 1 ’ intervenor’s benefit. Section 2511 of the Code provides that a party with whom or in whose name a contract is made for the benefit of another may sue in his own name without joining with him the party for whose benefit the suit is prosecuted. Under this provision it is very clear, we think, that plaintiff had the right' to prosecute the action in his own name for the recovery of the whole amount of the loss. The court possessed ample power, upon a showing of intervenor’s interest, either by plaintiff or defendant, to enter such judgment in the case us would have fully protected the rights of all the parties. If the presence of intervenor had been deemed necessary to the determination of the controversy, the court had the power, under section 2551, to order him to be brought in. The action instituted by plaintiff was for the recovery of the whole loss; and, as we think, was properly brought in his own name. The intervenor, however, had an interest in the matter in litigation, and he had the right, under section 2683, to become a party to the action. This section provides that “any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to ah action between other persons, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the.defendaut in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the cause, and before the trial commences.”

It was under this provision that intervenor became a party to the suit. He did not institute a new action, but became simply a party to the one pending between plaintiff and defendant. Nor did he make any demand independent of the matter in litigation between them, but asked only that the recovery for that portion of the loss which, by the terms of the contract sued on, was payable to him, should be for his benefit. The policy provides that no action for the recovery of any claim shall be maintainable, unless commenced within twelve months after the occurrence of the fire. Clearly, we think, this does not preclude the intervenor from becoming a party to an action which was properly brought within that time, and asserting any interest lie may have in the subject-matter of the action.

TJpon the undisputed facts of the case, we think the direction of tlie court was right, and the judgment will be

Affirmed.