Bradshaw v. Des Moines Ins. Co.
| Decision Date | 14 February 1912 |
| Parties | C. F. BRADSHAW, Appellee, v. DES MOINES INSURANCE COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jefferson District Court.--HON. D. M. ANDERSON, Judge.
APPLICATION to set aside a default and judgment against the defendant. The trial court denied the application, and defendant appeals.
Affirmed.
William B. Brown and James P. Starr, for appellant.
Leggett & McKemey, for appellee.
Plaintiff brought action against the defendant on a policy of insurance January 19, 1911. The original notice was served upon S Cornell, agent for the Des Moines Insurance Company, in Fairfield township, Jefferson county, Iowa, on January 18 1911, and the company was cited to appear and defend in the Jefferson county court January 30, 1911. No appearance having been made for the defendant, default was taken on the 1st day of February of the same year, and judgment rendered for the amount of the claim on the 2d day of the same month. On February 7th defendant appeared by counsel, and moved to set aside the default and judgment for reasons hereinafter to be stated. This motion was overruled on the 20th day of the same month, and this appeal followed.
Section 3790 of the Code reads as follows: "Default may be set aside on such terms as to the court may seem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits is filed, and a reasonable excuse shown for having made such default, nor unless application therefor is made at the term in which default is entered, or if entered in vacation, then on the first day of the succeeding term."
The affidavit of merits accompanying the motion makes the following showing:
That the defendant has a full, complete, and meritorious defense to the cause of action set forth in the plaintiff's petition, in this: That the alleged loss by fire referred to therein occurred on October 20, 1910, and that, according to the express terms of the policy in suit, and according to the laws of Iowa, it was necessary for the plaintiff, in order to maintain an action upon said policy, to file proofs of said loss within sixty days after the loss occurred, and that plaintiff did not file any proofs of loss whatsoever with the defendant company within sixty days after said loss occurred. That the defendant has a further meritorious defense to said action, in this: That, according to the plaintiff's application in writing for insurance, the building referred to therein was represented to be a frame, detached dwelling, and that in truth and fact the same was not a detached dwelling, but that said building was part of a frame row of buildings, and was used for a restaurant or mercantile purposes, except the rear of which the plaintiff occupied with living rooms. And that at the time said policy of insurance was issued the defendant had neither knowledge nor information that said building was not a frame, detached dwelling, or that the same was used for a restaurant or mercantile business, with the plaintiff's living rooms in the rear.
The soliciting agent who received the application also filed an affidavit, in which he stated:
That I saw the premises described in said application and said policy when said application was made and policy issued, namely, on or about December 1, 1905, and that on said date, namely, on or about December 1, 1905, said insured premises were occupied as a dwelling house only, and for no other purpose; and that there was no restaurant or other mercantile business carried on in the front of said dwelling house premises, or in any other part thereof at said time. . . . I further depose and say that when said application for said insurance was made out, on or about December 1, 1905, that the frame dwelling referred to therein was a detached building, and being vacant ground on every side of said building; that I did not see said premises after said policy was issued until after its loss by fire; and that I was never informed, and I did not know, that it had at any time been used, in part or whole, for restaurant or other business purposes.
Plaintiff filed a counter affidavit to meet the claimed defense, in which he stated, among other things, the following:
That before taking said application for the insurance said S. Cornell, as agent for said insurance company, inspected the buildings and made the measurements of two other buildings, and thereupon made the application on which the insurance was written and brought it to me for signature, and I signed the same, believing that he had correctly stated the facts in it, and without any concealment from said agent of any fact of the description or surroundings of said buildings and goods. That after the destruction of my house and personal property insured under said policy, I telephoned at once to said S. Cornell, whose office or agency was at Fairfield, in said county, and asked him to notify the company. That thereafter the adjuster of the defendant company, as I understood and was informed by him, acted pursuant to the notice, through S. Cornell, the agent, of the loss of said building. That I truly informed said adjusting agent of said defendant of all the facts about the fire and how it started, so far as I knew, and the property, and answered all his questions in regard to the same. That said adjusting agent said he would see Mr. S. Cornell, who wrote the application for the policy, and would have to report to the company before he could do anything, and said he would see Mr. Cornell and the company. That, relying upon his statement, and believing that he would see Mr. Cornell and the company, and then report to me, I did not make any other or further proofs of loss.
It is doubtless true that counter affidavits can not be considered in such cases; for to do so would result in a trial upon affidavits, which the statute does not contemplate. But as no motion was made to strike this counter affidavit, and the same seems to have been taken into account by the trial court, we are justified, perhaps, in considering it. It is the universal rule that the action of the court on such a motion will not be disturbed, in the absence of a reasonably clear case of abuse of discretion. Martin v. Reese, 105 Iowa 694, 75 N.W. 496; Carver v. Seevers, 126 Iowa 669, 102 N.W. 518; Cowell v. City, 130 Iowa 671, 105 N.W. 1016. Of course, we are more reluctant to interfere where the motion is sustained than where it is denied; for when sustained the parties still have the right of trial on the merits. But, even when denied, there must be a showing of abuse of discretion.
The showing in excuse of the default is as follows: Cornell, the agent, upon whom service was made, said in his affidavit that he was a soliciting agent for the company, and secured plaintiff's application for the insurance upon which the policy was issued. He further stated: "That on or about January 18, 1911, an original notice was served upon me by the sheriff of Jefferson county, Iowa, in the said case of Bradshaw v. Des Moines Insurance Company, and that I have said notice in my possession at my home, and that I did not send said original notice to the said Des Moines Insurance Company, or write said company, or notify said company orally, or in writing, or in any way, that said notice had been served upon me, for the reason that Attorney Leggett having, previously to the date of serving said notice, telephoned to me for the name of the adjuster of said company, I inferred and supposed that the said Des Moines Insurance Company knew about said case pending."
In a joint affidavit, signed by H. R. Howell and C. S. Hunter, we find the following statements:
We, H R. Howell and C. S. Hunter, on our oath depose and say that we are, respectively, the president and secretary of the Hawkeye & Des Moines Fire Insurance Company, a corporation, duly organized under the laws of the state of Iowa,...
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