Sagers v. Hawkeye Ins. Co.

Citation63 N.W. 194,94 Iowa 519
PartiesJOHN W. SAGERS v. HAWKEYE INSURANCE COMPANY, Appellant
Decision Date16 May 1895
CourtUnited States State Supreme Court of Iowa

Appeal from Jackson District Court.--HON. P. B. WOLFE, Judge.

Action on a policy of fire insurance. Judgment for plaintiff, and the defendant appealed.

Affirmed.

Geo. R Sanderson and W. C. & F. C. Gregory for appellant.

D. A Wynkoop and Wm. Graham for appellee.

OPINION

Granger, J.

The plaintiff is the holder of a policy issued by the defendant company on his store building and stock of goods. During the life of the policy there was a total loss of the building and stock, and this action is for a recovery under the policy. After the loss, the defendant's secretary called on the plaintiff with reference to the loss and the books; and as the papers of plaintiff had been destroyed by the fire except a small daybook, the secretary requested the plaintiff to procure duplicate bills of his purchases, after which an adjuster would be sent to adjust the loss. As to the period for which duplicate bills should be procured, there appears to have been some misunderstanding, appellant's claim being that it was from January 1, 1892, and appellee's being from December 1, 1892. The principal, and we think the only, question on the appeal, is as to the sufficiency of the proofs of loss to justify a recovery. The proofs of loss were served by the sheriff by giving to one J. W. Ellis, in Maquoketa, in Jackson county (who was a local soliciting agent for the defendant), the original, and then by mailing to the company, at Des Moines, Iowa a copy of the same. The court told the jury that the furnishing of the proofs of loss was essential to a right of recovery, unless the same had been waived in the way explained in the instructions. It also told the jury that the giving of a copy of the proofs of loss to the company, instead of the original, was not a compliance with the requirements of either the policy or the statute. Under such instructions, they being, because of the condition of the record, the law of the case, the right of recovery must depend on the fact of a waiver. The facts relied on to constitute the waiver are with reference to the procuring of the duplicate bills of purchase, and are indicated by an instruction of the court as follows: "Tenth. If you believe from the evidence that the plaintiff caused proofs of the loss to be made out, and that the said proofs were duly sworn to by him, and forwarded to the defendant, as he supposed, within a reasonable time after the fire, and inside of sixty days, but that, through mistake, a copy of the affidavit was mailed to and received by the defendant within a reasonable time after the loss, and within sixty days from date of the fire, and that it retained said copy of affidavit of proofs of loss, not returning them to the plaintiff, or making any specific objection to said proofs so furnished, or stating wherein the proofs were not satisfactory to it, and only giving to the plaintiff the general notification that the only papers it will accept are such papers as will comply in every respect with the printed conditions of the policy, and you further find from the evidence that the secretary of the company saw and conversed with the plaintiff, and requested him to procure for defendant's use and inspection duplicates of his purchases, and that, in the same letter in which the defendant says it will only accept such papers as comply with the printed conditions of the policy, it calls the plaintiff's attention in particular to the fact that it has, since the loss was reported, endeavored to ascertain the amount of the loss, and that the plaintiff has failed to give them the information they are entitled to on that subject, then, and on your so finding, it is for you to say, from all the facts and circumstances in the case, whether or not the plaintiff had a right to rely and believe that the defendant had waived other and different proofs from those received by it, except as to the particular objection made in said letter; and you are instructed, as a matter of law, that the duplicate bills required by it were not necessary or proper parts of the proofs of loss, but were only such as it was authorized to require the plaintiff to furnish under other conditions of its policy."

When the secretary and plaintiff were together, and the request was made to procure the duplicate bills, the request seems to have been agreed to, so as to constitute an agreement that it should be done, but it could not constitute an agreement except in so far as the parties understood the terms alike that is, if plaintiff only understood that he was to obtain them since December 1, 1892, he was under no obligation to procure them, because of his agreement, to cover a longer period. Appellant contends, however, that the company had a right to demand the production of such bills, and that a failure to produce them is fatal to a recovery. The conclusion is based on a provision of the policy, included in a clause thereof, specifying that in a case of loss the assured should render a particular account, etc., and, "if required, shall produce books of account and other proper vouchers, and permit copies and extracts to be taken therefrom," etc. We do not understand that the provision creates an obligation on the part of the assured to obtain from others duplicate bills, nor to do more than produce such books and vouchers as he may have for inspection, and permit copies and extracts to be taken from them. That is evidently the intent of the provision. It is likely true that, when inserted, the governing thought was that, in the ordinary course of a business like that of plaintiff's, the books and vouchers would be in his possession in case of loss, so that he could produce them. It would seem to be a provision intended to require the assured to aid, by such means as he had or controlled, to ascertain the loss; but nothing in the language seems to require that he should obtain from others, not under his control, books or papers for inspection or to be copied. It appears that plaintiff procured duplicates from December 1st to correspond with...

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