Eiseman v. The Hawkeye Insurance Company

• Decision Date: 07 March 1888
• Citation: 36 N.W. 780,74 Iowa 11
• Parties: EISEMAN v. THE HAWKEYE INSURANCE COMPANY
• Court: Iowa Supreme Court

36 N.W. 780

74 Iowa 11

EISEMAN v. THE HAWKEYE INSURANCE COMPANY

Supreme Court of Iowa, Des Moines

March 7, 1888

Decided December, 1887

Appeal from Pottawattamie District Court.--HON. A. B. THORNELL Judge.

ACTION upon a policy of insurance to recover the value of the property insured, which was destroyed by fire. There was a judgment on a verdict for plaintiff. Defendant appeals.

REVERSED.

Phillips & Day and Geo. R. Sanderson, for appellant.

Wright Baldwin & Haldane, for appellee.

OPINION

BECK, J.

It is necessary to consider but a few of the numerous errors assigned and argued by appellant. The facts upon which the respective objections to the judgment are based will be stated in connection with the discussion of each.

I. The district court, in stating to the jury the issues involved in the case, informed the jury that defendant admitted in its answer that a part of the goods and property covered by the policy was injured or destroyed by the fire. It is insisted that this is an erroneous statement of the effect of the pleadings. The defendant, in its answer, admits that a fire occurred in the building wherein the insured goods were situated when the policy was issued, but "upon information and belief" denies that any part of the property was injured by the fire. The pleadings of the defendant were verified. We need not inquire whether this language of the answer ought to be taken as a denial of the allegation as to the destruction of the property, for the reason that, if the instruction just referred to be regarded as erroneous, it did not, in our opinion, work prejudice to defendant, for the reason that in two other instructions the jury were informed that, to authorize a verdict for plaintiff, they must find from the evidence that the property or a part of it was injured or destroyed by fire. We think by no possibility could the jury have been misled, and thereby found the loss or injury of the goods upon the pleadings. The two explicit instructions were doubtless understood by them and followed. As they were directed to find the destruction or injury to the goods from the evidence, they doubtless did not consider the statement complained of as nullifying the direction of the other instructions.

II. The court, in the first instruction, directed the jury that, to entitle plaintiff to recover, they must find, among other things, that plaintiff "gave defendant notice of the fire and the loss thereunder as required by the terms of the policy." Counsel insist that this instruction denies the necessity of proof of loss. We think differently. This condition of the policy as to notice of loss plainly implies that proof of loss shall accompany and be a part of it. Hence, notice of loss "as required by the policy" would contain what counsel call "proof of loss."

III. The court gave the jury the following instructions. They fully state the facts and rules of law applicable thereto announced in them:

"4. The policy introduced in evidence provides that all persons having a claim under this policy for loss or damage, if required, shall produce books of account and other proper vouchers and extracts to be made therefrom, and be examined and reexamined under oath, by any person appointed by the company, at such time or times, and place or places, as the company or such person may require, touching all questions relating to the claim, and subscribe to the same; and until such examination is submitted to, if required, the loss shall not become payable.

"5. The above conditions of said policy are binding upon the assured. The burden is upon the defendant to show notice to said D. McGinnis requiring him to appear at a certain time and place to be so examined; but if you shall find from the evidence that such notice was served by the defendant upon D. McGinnis, the burden would then be upon said D. McGinnis to show by a preponderance of the evidence that he complied with said notice and submitted to such examination under oath, or that the defendant, by some act of its own, waived such condition of the policy. And if you shall find from the evidence that said D. McGinnis was required by the defendant, by notice served upon him, to appear at a certain time and place to be examined and reexamined under oath touching said loss, and that said D. McGinnis failed to comply therewith, the verdict must be for the defendant, unless it be shown, as above stated, that the defendant waived such condition.

"6. If you shall find that the defendant did notify said McGinnis to appear at Des Moines to submit to an examination under oath touching said loss, but that said McGinnis made excuse for not appearing at said time and place, and that defendant accepted said excuse, and then sent an agent to Council Bluffs, and at said latter place said McGinnis submitted to examination as required by the terms of said policy, then you are entitled to find that defendant waived its...