Hollis v. State Ins. Co.

Decision Date13 December 1884
Citation21 N.W. 774,65 Iowa 454
PartiesHOLLIS v. THE STATE INSURANCE COMPANY
CourtIowa 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.

REED J. ADAMS, J., dissenting.

OPINION

REED, J.

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 legal principle upon which the waiver of a forfeiture is based is this: A party to a contract, having a right to declare it forfeited, must exercise that right when called upon to act under the contract; he cannot recognize the contract as binding, and afterwards insist upon its forfeiture. In this case the adjuster, Mr. Ballard, represented the defendant, and for the purposes of this case was the insurance company; and a waiver of the forfeiture by him would bind the defendant to the same extent as if made by its highest officers. Whether Mr. Ballard waived the forfeiture is a question of fact which you will determine from the evidence. Plaintiff claims that the forfeiture of the policy was waived by the company, by asking and requiring proofs of loss of the elevator, after the company, through Ballard, the adjuster, had full knowledge of the facts of the forfeiture of the policy by reason of the sale of one-third interest in the elevator to Mahana, of the subsequent insurance in the Phoenix, and of the failure to give notice and proofs of loss within sixty days after the loss. He claims that the insurance company, through Ballard, was fully informed of all the particulars of these several acts of forfeiture, and, knowing these things, instead of at once declaring the policy forfeited, Ballard asked and required proofs of loss of the elevator, and thus imposed upon plaintiff some labor and expense. Now, if all these claims and allegations of plaintiff are established by the evidence, you are authorized to say that the forfeiture of the policy was waived by the defendant, and you should find for the plaintiff; but if plaintiff has failed to prove any one of the aforesaid claims and allegations upon which he relies to establish a waiver, you should find in favor of the defendant. And you are further instructed that if Ballard, the adjuster, merely advised or suggested to plaintiff that he should send proofs of loss to the insurance company, or if you find that plaintiff sent the proofs of loss in pursuance simply of the requirement of the policy, or on its own motion, uninfluenced by Ballard either way, then, in either or any such event, you should find for the defendant. Nor would there be a waiver of the forfeiture of the policy by the defendant in case the adjuster, Ballard, advised plaintiff in substance that he, Ballard, would not decide that question, but that the company would or might decide it for or against plaintiff after receiving proofs of loss, and plaintiff forwarded proofs of loss to the company for its decision under these circumstances; and under this latter state of facts, also, the insurance company would not be liable."

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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