57 Iowa 529 | Iowa | 1881
In the application it was stated, among other things, that the exposures on the east, within one hundred and fifty feet, were two frame buidings. The answer avers that there were more than two frame buildings within one hundred and fifty feet on the east. The plaintiff for reply averred that the “said adjoining risks within one hundred and fifty feet, not mentioned in the application, were not directly or indirectly the cause of the loss nor tributary thereto, and the defendants were in no way prejudiced thereby.”
If there was a breach of warranty such fact is fatal to the plaintiff’s recovery, and it is not proper to inquire whether the loss occurred by reason of the existence of facts which constituted the breach of warranty. We do not indeed understand the plaintiff as seriously insisting that it is. His position, as we understand, is that there is no evidence that there was a breach of warranty. To this the defendants reply that no evidence was necessary, because the plaintiff virtually admits in his reply that there were exposures within one hundred and fifty feet, not mentioned in the application, and they insist that if this is so there was necessarily a breach of warranty. It is to be observed, however, that the warranty in this case is somewhat peculiar. The warranty is that the application “is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, and value of the property insured, so far as the same are known to the applicant."
As to whether the plaintiff had knowledge that there were more exposures on the east within one hundred and fifty feet, than he stated in the application, there was no evidence one way or the other. This being so, the defendants contend that judgment should have been rendered in their favor, because all matters warranted are a part of the contract, and the burden is on the plaintiff to prove the truth of the matters warranted as a condition of recovery. It is not to be denied that it has been frequently so held. Campbell v. New England Mutual Life Insurance Co., 98 Mass., 381; McLoon v. Connecticut Mutual Life Insurance Co., 100 Mass., 472; Jefferson Insurance Co. v. Cotteral, 7 Wend., 72. This court assumed that to be the correct rule in Miller v. Mutual Benefit Life Insurance Co., 31 Iowa, 216; but the precise question was not involved in the case. As holding a different rule see Swick v. Home Life Lnsurance Co., 2 Dillon, 160, and Holabird v. Atlantic Mutual Life Insurance Co., 2 Dillon, 166. For the purposes of this opinion, it may be conceded that the general rule is that the burden is upon the insured to prove the truth of the matters warranted as a condition of recovery. But there are some exceptions to the rule. Where the pleadings are so framed that the defendant assumes the burden of showing a breach of warranty, it has been held that he has such burden. Leete v. The Gresham Life Insurance Co., 7 Eng. Law and Eq., 578. The defendants in the case at bar
There is another view which may be taken, and which seems to us entirely conclusive, that the burden in this case was upon the defendants. The breach of warranty alleged in this case, if proven, would have shown a want of good faith. It would have appeared that the plaintiff had procured the contract by statements which he knew at the time were not true. Now, fraud is never to be presumed, but the reverse. The precise question arose in the case last above cited. It was held that the allegations of falsehood made by the defendants amounted to fraud, and that it was incumbent, therefore, upon the defendants to prove them, because the presumption is always in favor of innocence and against fraud.
In the absence then of any evidence tending to show that the plaintiff knew that there were exposures on the east, within one hundred and fifty feet, besides the two frame buildings mentioned, the plaintiff’s right of recovery must be sustained so far as this ground is concerned.
IY. It is said that the plaintiff was not entitled to recover, because his proofs of loss showed false swearing and attempted fraud, and that the policy expressly provides that false swearing, or attempted fraud, shall cause a forfeiture of all claims under the policy. But this defense was not made in the answer.
The defendants insist that the design of the stipulation was to -merely waive the fact that the action was premature. It seems probable that it was construed by the court as a waiver of all laches in respect to the notice and proof of loss.
The defendants further insist that their attorneys had no power to waive more than the mere fact that, the action was premature. The court might have held, and probably did hold, otherwise.
The question as to the sufficiency of this stipulation to con
We cannot say what might have transpired in respect to the proofs, if the trial had proceeded. But the defendants arrested the trial. This they did while the proofs were in. They left nothing for the court to do but to pass upon the sufficiency of the evidence as it stood, and upon the supposition that it was all admissible.
In taking a ruling upon the motion, and in coming here upon appeal from the ruling thereon, it appears to us that we have nothing for review except the correctness of that ruling, and in that we find no error.
Several other points are made by the defendants, but we think they are substantially covered by the views which we have expressed. Affirmed.