Condon v. Des Moines Mut. Hail Ass'n
| Decision Date | 10 April 1903 |
| Parties | P. F. CONDON v. DES MOINES MUTUAL HAIL ASSOCIATION, Appellant |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--HON. S. M. WEAVER, Judge.
ACTION at law on a hail insurance policy. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.
Affirmed.
Carr & Parker for appellant.
Healy & Healy and M. J. Mitchell for appellee.
The jury fixed the plaintiff's damages at $ 76, and it is strenuously urged that the evidence fails to show any damage. The plaintiff testified as to the acreage of corn affected by the hailstorm in question, and as to the amount of corn harvested from the same. As to the first point, it may surely be said that the evidence was conflicting. The plaintiff was a farmer himself, and had owned the land in question for many years; and, if the jury believed that he was a truthful witness, it was justified in finding that he knew very closely the number of acres of corn he had in that year, even as against the testimony of the defendant's witness, who claimed to have figured out the exact amount of land by driving over it and counting the rows of stalks in sight the next spring, and just before the trial. The same observation may be made as to the number of bushels of corn harvested altogether and placed in the crib. The plaintiff by his own testimony and by that of several of his neighboring farmers, showed that his growing corn was materially injured by hail on the 6th day of July, and that when the crop was matured it yielded only about thirty-six bushels per acre, instead of forty-five or fifty--the estimated yield if it had not been injured--while by an exact measurement of the cribs after the corn was gone, and a mathematical computation of the number of cubic feet of corn in each one, it was urged that the plaintiff's crop amounted to fifty-seven bushels per acre, notwithstanding the hail. We are inclined to think that the defendant proved too much. At least, the jury seems to have taken the farmer's knowledge of his bushels, as well as of his acres, in preference to the figures of the defendant's witnesses based partly upon their conclusions as to the fullness of the cribs, and other matters of which they had no knowledge. If we were sitting as jurors, we might be a little more cold-blooded than the jury was, but we are not inclined to disturb their verdict.
Complaint is made of the first and fifth paragraphs of the court's instructions. They both relate to the question of waiver, and will be considered together. In the first it was said that if the plaintiff notified the defendant of his loss, and in response thereto it sent its adjuster to make a personal inspection thereof and settlement therefor, and he settled for the oats and denied any loss on the corn, but took plaintiff's proposition of settlement for the claimed loss, and promised to report to him the action of the defendant thereon, and that "thereafter, upon further demand by plaintiff, the defendant promised to send its adjuster again for further inspection and adjustment, but failed to do so, or to notify the plaintiff of its acceptance or rejection of his proposition, and that plaintiff, relying upon said promise, and pending settlement, failed to deliver an account of the crop harvested, and that the defendant at no time before the claim matured, on December 1st, asked or demanded that such an account be rendered, the defendant will be held to have waived its right to such an account." This instruction clearly covers the familiar doctrine of waiver, and its correctness as an abstract statement of the law is not seriously questioned. Bloom v. Insurance Co., 94 Iowa 359, 62 N.W. 810; Dyer v. Des Moines Ins. Co., 103 Iowa 524, 72 N.W. 681; Soorholtz v. Farmers' M. E. Ins. Co., 109 Iowa 522, 80 N.W. 542.
But it is said that the instruction had no facts in the record to support it. This...
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