Bach v. State Ins. Co.
| Decision Date | 23 October 1884 |
| Citation | 21 N.W. 99,64 Iowa 595 |
| Parties | BACH v. THE STATE INSURANCE COMPANY |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.
ACTION upon a policy of fire insurance. There was a trial to a jury and verdict and judgment were rendered for the plaintiff. The defendant appeals.
AFFIRMED.
John F Lacy and J. B. Johnson, for appellant.
L. C Blanchard, for appellee.
I.
After the plaintiff had introduced his evidence and rested, the defendant moved to dismiss the cause, on the ground that no proofs of loss had been introduced. The court overruled the motion, and the defendant assigns the overruling as error. The plaintiff introduced evidence tending to show that he served proofs of loss, and that they were received and retained without specific objection. The evidence of service was sufficient to justify the jury in finding that something was served as for proofs, and the evidence that they were received and retained without specific objections would justify the jury in finding that the defects, if there were any, were waived. The plaintiff's right of recovery, then, did not necessarily depend upon his introducing the proofs in evidence, and the court would not have been justified in taking the case from the jury.
We ought to say, perhaps, that a case might occur where it would probably be necessary to introduce the proofs upon the trial, even though, as in this case, not required by the policy. If an issue were raised as to whether the proofs were defective, and the plaintiff could not rely upon a waiver of defect, it might be necessary for him to show what the proofs were, and in such case his best evidence would be the proofs themselves.
But the question before us is as to whether, under evidence of service, and evidence of waiver of defects, the court could properly take the case from the jury for want of their introduction; and we hold that it could not.
II. The property insured was a butcher-shop, and the tools, furniture and fixtures used therein. The evidence showed that the plaintiff was a merchant, and that he employed one Nachman as a practical butcher to run the butcher-shop. The defendant asked Bach, on cross-examination, to produce the contract between him and Nachman, and asked him also whether Nachman was insolvent. The court, upon plaintiff's objection, disallowed the questions, and the defendant complains of this ruling. The questions upon their face do not appear to have been material, and no statement was made as to what the defendant expected to show. Such being the case, we cannot hold that the ruling was erroneous. The same may be said in regard to a question concerning a certain invoice.
Some questions were asked as to how much interest the plaintiff had in the business at the time of the fire, and these question were disallowed.
We cannot see how it was material what interest the...
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