Brock v. Des Moines Ins. Co.

• Decision Date: 26 May 1898
• Citation: 75 N.W. 683,106 Iowa 30
• Parties: BROCK v. DES MOINES INS. CO.
• Court: Iowa Supreme Court

106 Iowa 30

75 N.W. 683

BROCK

v.DES MOINES INS. CO.

Supreme Court of Iowa.

May 26, 1898.

Appeal from district court, Hamilton county; D. R. Hindman, Judge.

Action at law on a policy of fire insurance. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.McVey & McVey, for appellant.

George Wambach and Wesley Martin, for appellee.

ROBINSON, J.

The policy in suit was issued by the defendant in May, 1892, and purported to insure the plaintiff, for the term of one year, against loss or damage by fire, to the amount of $200 on his store building in Homer, and $1,000 on his stock of merchandise contained in the building. In January, 1893, the building and the merchandise contained therein were destroyed by fire, and the plaintiff seeks to recover for that loss, to the amount of the policy. This cause was before us on a former appeal, and the judgment of the district court was reversed because of insufficient proofs of loss. See 96 Iowa, 39, 64 N. W. 685. After the cause was remanded for further proceedings, an amendment to the petition was filed, setting out facts which were alleged to constitute a waiver of proofs of loss other than those furnished, and to estop the defendant to question their sufficiency. The defendant denies the alleged waiver and estoppel, and denies all liability.

1. There is conflict in the evidence respecting the facts upon which the alleged waiver and estoppel are based, but the jury was authorized to find such facts to be substantially as follows: When the fire occurred, the plaintiff was visiting in Adair county. As soon as he was informed of the fire, he returned to Homer; calling on his way at the office of the defendant in Des Moines, and stating to persons in the office what he knew of the fire. He was told to investigate the loss, and inform the defendant of its amount and origin, and that the company would send an adjuster to investigate it. The plaintiff, on the day of his arrival at Homer, wrote to the defendant that the building was burned, and also his stock of merchandise, and that his loss on the latter was more than $1,400. An agent of the defendant, named Moody, testified as a witness, in regard to his duties, as follows: “I do most anything. I write insurance; make collections; appoint agents; inspect risks; investigate losses; sometimes settle matters.” He also testified that he had done that kind of work for the defendant for six or seven years. A few days after the plaintiff wrote to the defendant as stated, Moody appeared at Homer, and informed the plaintiff that he had come to adjust his loss, and that he understood the plaintiff had written a letter to the company. Moody spent several hours at Homer, investigating the loss; and then, at his request, the plaintiff went with him to Webster City, and together they went into Moody's room at an hotel, and there spent several hours in considering the loss. Moody asked for a statement of the merchandise destroyed, and the plaintiff submitted an inventory of it, prepared but a short time before the fire. Moody examined it, took a statement of all the plaintiff had lost, and said he would write out a proof of the loss, and have it acknowledged. Thereupon he wrote out the following:

“State of Iowa, Hamilton County--ss. I, J. F. Brock, being duly sworn, on oath depose and say:

That on the 16th day of January, 1893, I made inventory of my stock of goods in my store at that date, including medicines; and some of the medicines was held by me for sale on commission; also, said inventory, including furniture and fixtures in my store. The said inventory, including above-mentioned medicines and furniture and fixtures, amounted to fourteen hundred forty-six 29/100 dollars (1,446.29).

+-----------------------------------------------------+
                ¦Medicine held on commission amounted to      ¦$ 36 01¦
                +---------------------------------------------+-------¦
                ¦Furniture and fixtures                       ¦53 58  ¦
                +---------------------------------------------+-------¦
                ¦Goods sold after inventory, and prior to fire¦80 42  ¦
                +---------------------------------------------+-------¦
                ¦Reducing my stock and inventory              ¦$170 01¦
                +-----------------------------------------------------+
                

That my policy permits me to carry insurance on 3/4 actual value of my stock of goods, in policy No. 58,275, Des Moines Insurance Company. That I refuse to allow any depreciation of value on my stock on account of age or damaged goods. I have been in the business since August, 1890. At the time I went into business, I purchased a stock of goods of Mr. J. E. Smith, at Homer, Iowa.

It is agreed that the Des Moines Insurance Company has not waived any of its legal rights or defenses by investigating my loss for the purpose of getting facts relative to my fire, or amount of stock on hand at time of loss.”

After the instrument was drawn, Moody and the plaintiff went to the office of a notary public. The plaintiff was there asked if he understood the paper; and Moody answered for him that he did, and also stated that it was proofs of loss. The plaintiff also said that he understood it, and he signed and swore to it. Moody then took it; said he would immediately mail it to the defendant. The plaintiff asked him if that “was all that was required to know; if it was all right?” and Moody answered: “Yes; that is all right.” The plaintiff relied upon what had been said and done as being sufficient, and did not make any further proof. The defendant did not make any objection to the proof, nor call for additional information. We held on the former appeal that the proof furnished failed to comply with the statutory requirements. In response to the claim of waiver and estoppel, on which the plaintiff relies, the defendant calls attention to certain provisions of the policy. One of those relates to notice and proof of loss, but, in view of the requirements of chapter 211...