Kirkman v. Farmers' Ins. Co.

• Citation: 57 N.W. 952,90 Iowa 457
• Parties: ADA KIRKMAN v. THE FARMERS' INSURANCE COMPANY, Appellant
• Decision Date: 08 February 1894
• Court: United States State Supreme Court of Iowa

57 N.W. 952

90 Iowa 457

ADA KIRKMAN v. THE FARMERS' INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 8, 1894

Appeal from Monroe District Court.--HON. W. I. BABB, Judge.

ACTION on a policy of insurance against loss by fire. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.

Reversed.

Henry L. Dashiell for appellant.

T. B Perry for appellee.

OPINION

ROTHROCK, J.

The property insured was a frame dwelling house, and certain household furniture and personal property kept and used in the house. The policy was issued on the twenty-fifth day of January, 1890, and the amount of the insurance was four hundred and twenty-five dollars. The property was totally destroyed by fire on the twenty-seventh day of June, 1890. The policy provides that, in case of loss of the property by fire, "the assured shall forthwith give notice of said loss to the secretary of the company, and within sixty days render a particular account of such loss, signed and sworn to by the assured, stating when and how the loss originated, the nature of the title, and interest of the assured and all others in the property." The application for the insurance was taken by one Mullen, a local agent of the defendant, who was a mere soliciting agent, without authority to issue policies. The day after the fire, the husband of plaintiff called upon Mullen, and advised him of the loss, and Mullen wrote a letter to the company at Cedar Rapids, giving notice of the loss. It is conceded that no proof of loss such as was required by the policy was made within sixty days after the fire. The plaintiff claims that formal proof of loss was waived by the defendant. In our opinion, the determination of this question is decisive of the case, and no other question need be considered. The defendant introduced no evidence on the trial, and, after the plaintiff had introduced her evidence, the defendant made a motion for a verdict against the plaintiff, one ground of which was as follows: "The proofs of loss were not furnished in sixty days after the loss, as required in the contract and the statute, and there is no evidence of any waiver of the same by the defendant." The motion was overruled, and the court charged the jury, and a verdict was returned for the plaintiff.

The claim of waiver of proofs of loss is based upon the acts of the officers and agents of the company by which the plaintiff was induced to believe that no proofs of loss were required. There is nothing in the evidence by which any waiver, founded upon the acts of declarations of the agent Mullen could be inferred. Moreover, he was a mere soliciting agent, with no power to issue policies or bind the company by a contract of insurance. Agents possessing the limited power of soliciting insurance, delivering policies, and receiving premiums can not waive conditions and forfeitures. Viele v. Insurance Co., 26 Iowa 9; Armstrong v. Insurance Co., 61 Iowa 212, 16 N.W. 94; Garretson v. Insurance Co., 81 Iowa 727, 45 N.W. 1047. The letter written by the soliciting agent was received at the general office, and was answered by a postal card in these words:

"OFFICE OF FARMERS' INS. CO.

"CEDAR RAPIDS, IOWA, June 30, 1890.

"DEAR SIR:--Your notice claiming loss on your policy No. 178,879 has been received, and will receive prompt attention. Yours, truly,

"J. H. SMITH, Prest."

No other communication was had with the home office until November 9, 1891, long after the expiration of the sixty days in which proofs of loss should have been made, when the following correspondence was had:

"ALBIA, IOWA, November 9, 1891.

"J. H. Smith, President Farmers' Insurance Co., Cedar Rapids, Iowa:

"Mr. Douglass Kirkman, husband of Mrs. Ada Kirkman, informs me that, on the twenty-seventh of June last, Mrs. Ada Kirkman sustained a loss by fire of her property insured with your company by policy No. 178,879. He says he has given you notice of the loss, receipt of which was acknowledged by you June thirtieth last. The policy was destroyed by the fire along with the property insured. The amount of the insurance was $ 425, which he claims his wife has sustained by the fire, and this amount he claims of your company as the damage due his wife on the policy. If the matter will be settled without suit, please inform me. If not, we desire suit to commence at once. Will you please furnish me a copy of his policy, the original having been destroyed in the fire, and he will pay the expense. T. B. PERRY."

"CEDAR RAPIDS, IOWA, 11--12--'90.

"T. B. Perry, Albia, Iowa:

"As per your request of tenth inst., we herewith inclose you copy of policy issued to Mrs. Ada Kirkman, having date January 23, 1890, No. 187,879. No proof or affidavit of any loss sustained under this policy has been received by the company.

"J. H. SMITH, President."

On the fifteenth...