Barre v. Council Bluffs Ins. Co.

• Decision Date: 22 January 1889
• Citation: 76 Iowa 609,41 N.W. 373
• Parties: BARRE v. COUNCIL BLUFFS INS. CO.
• Court: Iowa Supreme Court

76 Iowa 609

41 N.W. 373

BARRE

v.COUNCIL BLUFFS INS. CO.

Supreme Court of Iowa.

Jan. 22, 1889.

Appeal from district court, Delaware county; JOHN J. NEY, Judge.

Action upon a contract to execute and issue a policy of insurance. Upon a trial to a jury the court, at the close of the plaintiff's evidence, directed a verdict for defendant. Plaintiff appeals.J. H. Trewin and Yoran & Arnold, for appellant.

R. W. Barger, for appellee.

BECK, J.

1. The petition declares upon a contract whereby defendant was bound to issue and deliver to plaintiff a policy of insurance. Plaintiff executed and delivered to defendant a promissory note for the premium agreed to be paid, but defendant did not issue the policy. The property intended to be insured was destroyed by fire, and plaintiff in this action seeks to recover, upon the agreement to issue the policy, the loss sustained by plaintiff by the destruction of the property, to the extent of the sum to be insured by defendant upon the property as fixed by the agreement to issue the policy. In amendments to the petition it is alleged that defendant, by refusing to deliver the policy of insurance, and by denying the existence of the contract of insurance, prevented plaintiff from making proof of loss within the time prescribed in the policy of insurance usually issued by defendant, and the defendant thereby did waive proof and notice of loss. The answer alleges that, by the terms of the policy of insurance usually issued by defendant, the assured is bound, upon the happening of a loss, to at once give the defendant notice thereof, with a particular account of the loss in writing, showing the origin of the fire, the occupancy of the building, the value of the insured property, the interest of the assured therein, and other matters. It is further alleged that the notice and account required by this condition of the policy were not given at any time. The plaintiff introduced evidence tending to establish the allegations of his petition. He failed to introduce any evidence tending to show that immediate notice of the loss was given to the defendant. The district court directed the jury that, for the reason no such notice was given, they should return a verdict for defendant, which was done.

2. In our opinion, the district court rightly directed a verdict for defendant. While the action is not upon the policy of insurance, it cannot be doubted that defendant's liability must be determined by the terms and conditions of the policy, which also must determine the plaintiff's measure of damages in case he recovers. The action is on an agreement to issue a policy. Now, it is plain that plaintiff's damages are just what he would have recovered if the policy had been issued and the suit brought thereon. It is also plain that defendant undertook to issue a policy in the usual form of its policies covering like risks. The law will presume that the minds of the contracting parties met upon a contract containing the terms and conditions of the policy usually issued by defendant covering like risks. The contract sued on contained no conditions. But it was not a contract of insurance, but a...