Corson v. Anchor Mut. Fire Ins. Co.

• Decision Date: 13 April 1901
• Parties: CORSON v. ANCHOR MUT. FIRE INS. CO.
• Court: Iowa Supreme Court

113 Iowa 641

85 N.W. 806

CORSON

v.ANCHOR MUT. FIRE INS. CO.

Supreme Court of Iowa.

April 13, 1901.

Appeal from district court, Shelby county; W. R. Greene, Judge.

Action on policy of fire insurance. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.Sullivan & Sullivan, for appellant.

Byers & Lockwood, for appellee.

McCLAIN, J.

Appellant relies principally on two defenses: First, misrepresentations in the application as to the title of the property, its value, and the amount of incumbrance thereon; and, second, breach of a clause incorporated in the policy known as the “Iron-Safe Clause.” The first of these questions resolves itself into an inquiry as to whether the application was incorporated into or attached to the policy as required in Code, § 1741, in such way that misrepresentations therein could be relied on by appellant to defeat the policy; and the sufficiency of the second defense turns on the question of waiver.

1. While there was an apparent pretense of setting out a copy of the application on the back of the policy, as required by the statute, it appears that what was there set out was so entirely defective and incomplete that the court held it to be not a compliance with the requirements of the statute, and therefore refused to allow appellant to prove the falsity of statements made in the application. That is to say, while there was an application duly made out and containing these statements, which application was before the trial court and before the jury, the court ruled that the copy of this application set out on the back of the policy was so inaccurate and so defective as a copy that the statute requiring the company to attach to the policy a copy of the application had not been complied with; and the court, therefore, under the direction of the statute, held that the company was precluded from proving the falsity of the representations in the application as a defense to the action on the policy. A comparison between the original application and the copy as they appear in the record convinces us that the ruling of the court was correct. As a matter of fact, the purported copy contains only two out of perhaps a dozen of the items or memoranda written into the original application. This was no copy at all, and the statute was not complied with. Any defense based on statements in the original application therefore necessarily fails.

2. Attached to the policy as a printed slip was a clause denominated the “Iron-Safe Clause” by which the insured agreed to keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last two inventories of said business, and to keep such books and inventories securely locked in a fireproof safe at night, etc., and covenanted to produce such books and inventories in case of loss; otherwise, the policy should be deemed null and void, and no action should be maintained thereon. It is conceded that the stipulations of this clause were not complied with by the insured, and the court so held; but the plaintiff contended that the breach of this clause had been waived, and that was the question presented to the jury. However, before discussing the question of waiver, it is proper to notice the claim of appellant that production of the books called for by the iron-safe clause was demanded at various stages of the proceeding, and that this demand was not complied with, and that therefore the insured could not recover. Although appellant attempts to make out of this a different question than that involved in a breach of the clause by failure to keep the books required, and in the manner required, we can see no difference between the two questions. If the subsequent acts of the company relied on as a waiver of the breach of this clause did constitute a waiver, it extended to the inability to produce the books required, and the failure to prove the loss by means of such books, as well as the breach involved in the failure to keep the books in the first place. With reference to the objection that the book kept by the insured in which entry of credit sales was made, and his bank book showing cash deposits, both of which were introduced by plaintiff in connection with his own testimony, were not such books as were required by the iron-safe clause, it is sufficient to say that they were not relied upon as constituting a compliance with that clause, but were used only as a means of refreshing the witness' recollection as to the extent of his cash and credit sales, and were admissible for that purpose, regardless of whether they were such as were contemplated by the iron-safe clause or not, if it should be found, as contended, that the breach of said clause was waived. The important question, therefore, with reference to the iron-safe clause, is not whether it was valid, and whether there was such breach thereof as to defeat recovery under the policy, but whether, conceding its validity and the breach, there...