102 Iowa 512 | Iowa | 1897
Lead Opinion
The issuance of the policy in suit, which covered a two-story brick building in the city of Belle Plaine, a meat cutter and an engine and boiler; the destruction of the building by fire, and the giving of proper proofs of loss, are all admitted. The defendant, in defense, pleaded a former suit pending in Lee county, which went to judgment before the commencement of this action. It also pleaded concurrent insurance upon the property, and set out this provision of plaintiff’s policy: “The directors shall have the right to rebuild the building or repair the same, and the assured shall furnish to, the directors proper specifications of the building destroyed or damaged; and the claim of the assured shall be limited to the actual cost of the building to the assured, or of replacing the same, less a reasonable depreciation for wear and tear and age of the building. If the directors rebuild or repair a •building, the assured shall pay to the company the difference in value between the new and old building, and, in case of disagreement, the amount thereof shall, upon demand of either party, be determined as provided- by section 14 of the charter. And if there shall be any policies of other companies thereon not contributing to said rebuilding, the assured shall pay to this company the amount thereof, which shall be expended in repairing or restoring the buildings, subject to the foregoing •conditions,” — and charged the fact to be that within thirty days after the alleged proofs of loss, this defendant demanded the right to rebuild said building under the terms and conditions of the policy, and demanded of the plaintiff that the assured pay to this company the amount of the other insurance not contributed to such rebuilding, to enable the defendant to expend the same to restore and rebuild the building, or so much as was necessary to rebuild the same, according to the terms of the policy. It also pleaded that by
III. One other question is discussed by counsel, but, as it will not arise upon another trial, we will not consider it further than to say that the case should have gone to the jury under the issues as they stood upon the question as to the amount of defendant’s liability. For the reasons pointed out, the judgment of the district court is reversed.
Rehearing
Supplemental Opinion on Re-hearing.
Overruled.
— In' a petition for re-hearing, our attention is for the first time called to section 1692 of McClain’s Code, which, among other things, provides that “the directors (of insurance companies) shall keep full and correct entries of their transactions, which shall at all times be open to the inspection of the stockholders, and to the inspection of persons invested by law with the right thereof.” Assuming, for the purpose of the case, that this statute applies to mutual companies, yet it does not change the rule