Briney v. Tri-State Mut. Grain Dealers Fire Ins. Co.

• Decision Date: 13 November 1962
• Docket Number: TRI-STATE,No. 50653,50653
• Citation: 254 Iowa 673,117 N.W.2d 889
• Parties: W. J. BRINEY, Appellee, v.MUTUAL GRAIN DEALERS FIRE INSURANCE CO., Appellant.
• Court: Iowa Supreme Court

Page 889

117 N.W.2d 889

254 Iowa 673

W. J. BRINEY, Appellee, v. TRI-STATE MUTUAL GRAIN DEALERS FIRE INSURANCE CO., Appellant.

No. 50653.

Supreme Court of Iowa.

Nov. 13, 1962.

John D. Randall, Cedar Rapids, for appellant.

O. W. Lawrence, Cedar Rapids, and J. E. Heiserman, Anamosa, for appellee.

LARSON, Justice.

Plaintiff W. J. Briney seeks recovery from defendant Tri-State Mutual Grain Dealers Fire Insurance Company for a fire loss which occurred on October 23, 1958. He alleged in paragraph 6 of his petition 'That the plaintiff has duly performed all the conditions and complied with all the conditions of the said policy to be performed on his part.' In Division I 'Defendant denies the allegations of Paragraph 6 of plaintiff's Petition.' In Division II defendant alleged there was a violation of the occupancy clause of the policy making plaintiff's policy of insurance 'null and void'. In reply plaintiff first denied the allegations of defendant in Division II and then by amendment of February 1, 1960, alleged that if there was any such breach the same was waived by defendant through the adjustment and payment of a prior claim on a loss arising a little over a month before, and a failure by it to terminate the coverage or refund the premium. The jury returned a verdict for plaintiff in the sum of $6,030.99 plus interest. Defendant's motions for judgment notwithstanding the verdict and for a new trial were overruled, and judgment was entered for plaintiff. In this appeal defendant complains of the trial court's rulings on pleadings and evidentiary matters and its instructions to the jury. We find no reversible error.

As we understand it, appellant relies upon four propositions: (1) that the court erred in refusing to sustain defendant's motion to dismiss made at the close of plaintiff's case, and renewed at the close of all evidence, and its motions for judgment notwithstanding the verdict and for a new trial; (2) that the court erred in refusing certain evidence relating to the cause of the fire, and to the status of independent insurance adjusters in the trade; (3) that the court erred in refusing to give an instruction with respect to the necessity to furnish a proof of loss; (4) that the court erred in giving Instructions Nos. 5, 6 and 7, for the reason that they overemphasized plaintiff's theory of the case.

I. The first proposition argued by appellant is that plaintiff failed to prove he had given the company written proof of loss as required by both the policy and code section 518.19, Code of Iowa 1958, I.C.A. or that the company had waived its right to require such proof of loss.

Appellee's answer to this and also appellant's third contention is that no issue was ever raised in this action as to whether plaintiff furnished proof of loss. He admits his only pleading in that regard is found in the general allegation of paragraph 6. There it is stated plaintiff had performed and complied with all conditions of the policy, one of which he says was that 'the insured shall give immediate written notice to this Company of any loss.' It is his position that defendant's general denial of his allegation of paragraph 6 was not sufficient to raise the issue of whether he had failed in that regard, that if defendant had desired to raise that issue here, it had to do so in the proper manner--in a manner similar to that it used to allege a violation of the occupancy clause in the policy. He contends, except for a belated amendment to the answer in which it attempted to raise the issue, the only pleading in this case which referred to the proof of loss was that in paragraph 6.

Rule 98, Iowa Rules of Civil Procedure, 58 I.C.A. provides: 'Permissible Conclusions; Denials Thereof. * * * corporate authority to sue or do business in Iowa; or performance of conditions precedent; or judgments of a court, board or officer of special jurisdiction, may be pleaded as legal conclusions, without averring the facts comprising them. It shall not be sufficient to deny such averment in terms contradicting it, but the facts relied on must be stated.' (Emphasis supplied.) Under this rule it would appear there was no issue raised herein as to whether proof of loss was properly filed or waived, and we have so held. Hart v. Accident Association, 105 Iowa 717, 75 N.W. 508; Conway Bros. v. Iowa Hardware Mutual Ins. Assn., 190 Iowa 1369, 181 N.W. 768.

Since defendant did not raise the issue by proper pleadings, the sufficiency thereof must be deemed admitted under Rule 102 of the Iowa Rules of Civil Procedure, which provides: 'Every fact pleaded and not denied in a subsequent pleading as permitted by these reles shall be deemed admitted except (1) allegations of value or amount of damage, * * *.'

While such an admission may not be considered an admission against interest, which could be used in another action, it does eliminate those issues in the present action. Evidence relating to performance of that precedent condition would, of course, not be relevant nor material to the only remaining issue in the pleadings, i. e. violation of the occupancy clause of the contract, and no instruction pertaining thereto would have been proper.

The problem was discussed in the early case of Brock v. Des Moines Ins. Co., 96 Iowa 39, 43, 44, 64 N.W. 685, where the court pointed out that plaintiff in his pleading did not state generally that he duly performed all the conditions on his part but undertook to set out the facts constituting the performance of the conditions of the policy. When those were denied, an issue was raised and it then became 'necessary for plaintiff to establish the fact that he had given proper proofs of loss.' In Hart v. Accident Association, supra, 105 Iowa 717, 722, 75 N.W. 508, it was said: 'The averment of the petition * * * was a general statement to the effect that the plaintiff had performed all the conditions of the contract on his part, and was sufficient, under section 2715. The answer of the defendant contained a general denial, but the facts relied upon to show that due notice had not been given were not stated, and therefore the sufficiency of the notice was not in issue.' So far material here, the provisions of Section 2715 and Rule 98 R.C.P., are the same.

In Conway Bros. v. Iowa Hardware Mutual Ins. Assn., supra, 190 Iowa 1369, 1373, 181 N.W. 768, it was pointed out that the effect of a general denial of a pleading is that the conditions precedent for recovery admit the material facts in such a case, and that since they are not in dispute, unless some special matter is pleaded that avoided legal liability thereon, the trial court could properly direct a verdict in favor of the plaintiff. Thus it appears that if defendant wished to rely upon the defense of failure to file proof of loss, it should have been specially pleaded. Apparently defendant chose to rely upon one defense, i. e. that plaintiff voided coverage under the policy by violation of the occupancy clause. It seemed a good defense. However, after plaintiff amended his reply alleging waiver, and the trial had commenced, it seems defendant was not so sure the single issue was sufficient and attempted to raise another.

Unless the trial court was in error in striking defendant's amendment of April 18, 1961, during the trial, which attempted to raise the issue of failure to file proof of loss, the single issue raised by the pleadings was that relating to the occupancy clause of the policy. Under the circumstance no error appears.

Plaintiff's petition had been filed September 21, 1959. Defendant's answer including Division II alleging violation of the occupancy clause of the policy was filed October 27, 1959. Plaintiff's reply, filed November 3, 1959, was amended February 1, 1960. By the amendment plaintiff raised the issue of waiver of that violation, and so the matter stood when the trial began on April 17, 1961. On April 18, 1961, defendant filed its amendment in which it sought to raise the issue as to plaintiff's failure to furnish proof of loss. Upon motion it was stricken by the court.

We have no doubt the trial court was acting well within its discretion in refusing to allow the belated amendment and in striking the same. The rule is well established that broad discretion in the matter of permitting an amendment during the trial is given the trial court. Kuiken v. Garrett, 243 Iowa 785, 803, 51 N.W.2d 149, 160, 41 A.L.R.2d 1397; Elson v. Nickles, 240 Iowa 292, 294, 36 N.W.2d 343, 344; Webber v. Larimer Hdw. Co., 234 Iowa 1381, 1389, 15 N.W.2d 286, 290; Robinson v. Home Fire & Marine Ins. Co., 244 Iowa 1084, 1090, 59 N.W.2d 776.

The question was discussed at some length in Russell v. Chicago, R. I. & P. R. Co., 251 Iowa 839, 844, 102 N.W.2d 881, and we said: 'The long delay in filing the amendment was sufficient ground for the trial court, in its discretion not to permit it', citing cases. There an amendment which would necessitate a substantial change in the defense, filed three and one half years after suit was filed, was stricken and an appeal followed. The situations are quite similar.

If such an amendment were permitted here during the trial, about a year and a half after the answer had been filed, it would require plaintiff at that late hour to meet a new defense, and to so change his burden at that time would seem unjust. Thus we think here there were sufficient grounds for the court's refusal. Under those circumstances we are at least satisfied there was no abuse of the court's discretion in striking the defendant's amendment.

What we have said disposes of the issue as to failure to submit proof of loss and, since that issue was not in the case, the court obviously did not commit error by refusing to admit testimony bearing upon that issue nor by refusing to submit an instruction to the jury thereon.

II. Perhaps the principal questions presented to us are whether plaintiff's evidence supports his contention that the...