Hollis v. State Ins. Co.
Decision Date | 13 December 1884 |
Citation | 21 N.W. 774,65 Iowa 454 |
Parties | HOLLIS v. THE STATE INSURANCE COMPANY |
Court | Iowa Supreme Court |
Appeal from Polk Circuit Court.
ACTION on a fire insurance policy. There was a verdict and judgment for plaintiff. Defendant appeals.
REVERSED.
Wright Cummins & Wright and J. B. Johnson, for appellant.
John A McCall, for appellee.
OPINION
I.
The property covered by the insurance was an elevator at Radcliff, in Hardin county. At the time the insurance was taken, plaintiff was the sole owner, and the policy was issued to him. It contained the following provision: "If the title of the property is transferred, incumbered or changed, or if, without written consent hereon, there is any prior or subsequent insurance, * * * this policy shall be void." Defendant alleged in its answer that plaintiff, in violation of this provision, transferred the property to a partnership composed of himself and one Mahana; also that subsequent insurance to the amount of $ 500 was procured to be taken on the property by another company; and it claims that the policy was avoided by this change of title to the property and the subsequent insurance. Plaintiff, in his reply, admitted the truth of these allegations, but alleged that defendant, after the loss occurred, and with full knowledge of all the facts with reference to the subsequent insurance and the change of title, notified and requested him to make proofs of his loss, and that, believing that said request was made by defendant with the intention to settle and pay said loss, he did, at large expense of money, labor and time, make proofs of said loss to defendant, and he claims that defendant thereby waived said provision of the policy. The evidence shows that soon after the loss occurred one C. J. Ballard, an adjusting agent for defendant, called on plaintiff with reference to the loss. It also tends to show that he had learned before he went to Radcliff of the subsequent insurance on the property, and that plaintiff then informed him of the change in the title to the property, and that, with knowledge of these facts, he directed plaintiff to make out and forward to defendant his proofs of loss, and gave him a blank form to be used for that purpose. Soon after this agent left Radcliff, plaintiff made out proofs of the loss and sent the same to defendant, but they were returned by said Ballard, with the information that in certain respects they were not satisfactory. He also sent him another blank form for said proofs, which plaintiff filled out and returned to defendant; but more than sixty days had elapsed since the loss when the second proofs were sent in.
The circuit court instructed the jury that the policy was forfeited by reason of the matters set up in the answer and admitted in the reply, and by reason of plaintiff's failure to give notice and furnish the proofs of loss within sixty days from the date of the loss, and that plaintiff could not recover, unless there had been a waiver by defendant of the forfeiture. The court also gave the following instruction:
The giving of these instructions is assigned as error by the defendant. By the first instruction the jury were told, in effect, that Ballard,...
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