Cummins v. Pa. Fire Ins. Co.

• Decision Date: 11 January 1912
• Parties: CUMMINS v. PENNSYLVANIA FIRE INS. CO.
• Court: Iowa Supreme Court

153 Iowa 579

134 N.W. 79

CUMMINS

v.PENNSYLVANIA FIRE INS. CO.

Supreme Court of Iowa.

Jan. 11, 1912.

Appeal from District Court, Allamakee County; A. N. Hobson, Judge.

Action on insurance policy resulted in judgment as prayed. The defendant appeals. Affirmed.Douglas Deremore and Barger & Hicks, for appellant.

Wm. S. Hart, for appellee.

LADD, J.

In the afternoon of June 20, 1908, a storm of unusual violence raged at Waukon. Several inches of rain and hail fell within a half hour. The waters gathered in the depression along the course of a creek bed, through which a covered sewer had been constructed, several feet deep, and flowed rapidly past the southwest corner and west side of a brick building containing plaintiff's millinery stock and fixtures. As the hail ceased falling, the west wall of the bulding collapsed, and most of the property mentioned was precipitated into the water and débris. Whether this was caused by a stroke of lightning or water undermining the wall was an issue upon which the evidence was in conflict. The millinery stock and fixtures were covered by a policy issued by the defendant, and the issues were: (1) Whether a lightning clause insuring against damages caused by lightning was attached to the policy; (2) whether the wall was struck by lightning; (3) whether the injury to the insured property by débris and water was the direct consequence of the lightning; and (4) whether the policy subsequently was so canceled as to avoid liability. The evidence showed conclusively that neither the defendant's agent nor the insured had any intention of canceling the policy for the period of the term elapsed, and that the policy was merely terminated because the agent thought it advisable, as the goods were taken to another location where the premium was higher, that a new policy issue instead of transferring that then existing. The last defense mentioned then was without merit. As said, the evidence was in sharp conflict as to whether the building was struck by lightning, and we are not inclined to interfere with the verdict of the jury.

[1][2] 1. The loss of the policy was sufficiently explained, and there is no controversy concerning its contents, save that plaintiff claims that a lightning clause was attached thereto, while this is denied by defendant. The latter insists that the evidence was insufficient to carry this issue to the jury and complains of the refusal of the court to receive in evidence a purported copy of the written portion of the policy made by the recording agent as tending to prove that the lightning clause was not attached. The policy was issued March 27, 1908, by being countersigned by the recording agent of defendant F. H. Robbins. On Monday, the second day after the fire, plaintiff called on him for a copy of the policy lost, and asked that it be transferred to cover her goods in their new location. Instead, Robbins issued a new policy dated June 22, 1908, for the term of one year, at a higher rate, and delivered it to plaintiff without explanation. She handed this to her attorney, who, noticing the lightning clause attached, advised her that it was all right and made no further examination at that time. A few days later, upon noticing the difference in date, he interviewed Robbins about the matter, and the latter informed him that the policy was an exact copy of that lost, except the change in date, the rate of premium, and the location of the goods insured; that, as these had to be changed, he had thought it as well to issue a new policy, and had done so without intention of canceling that previously issued. Subsequently Robbins informed Murphy that the company had demanded that the lightning clause be detached and was permitted to do so upon giving a receipt therefor. The plaintiff had not noticed whether the lightning clause was attached to the policy lost, but testified that some 17 or 18 years previous she had applied to Robbins for a policy insuring her goods against fire and lightning and received such a policy, issued by defendant, and that each year upon the expiration of the existing policy in the defendant company the agent had handed her a policy as a renewal of that which had expired. Presumably each renewal was in terms and on conditions of the policy renewed. Thomason v. Ins. Co., 92 Iowa, 72, 61 N. W. 843. See, also, Taylor v. Ins. Co., 98 Iowa, 521, 67 N. W. 577, 60 Am. St. Rep. 210;McLaughlin v. Ins. Co., 126 Iowa, 149, 101 N. W. 765, 106 Am. St. Rep. 344. The evidence was sufficient to carry the issue to the jury.

2. The main contention of appellant is that the court erred: (1) In receiving the evidence of Murphy and plaintiff, for that it was not the best evidence available, it appearing that Robbins, as defendant's recording agent, kept a register containing a copy of all policies, including that lost, in his office; and (2) in refusing to receive such register so showing in evidence. Mrs. Eddy who succeeded her father, F. H. Robbins, as defendant's agent at Waukon, testified that in issuing a policy a daily report is first made out to be sent to the company, and an exact copy thereof entered into the policy register, and then the policy prepared; that in the register and daily report a description of the property, the amount for which insured, the date and the premium, and the rate are noted, and, if a lightning clause or gasoline clause is attached to the policy, this is indicated in the policy register, and, if any change is made subsequently, this is also noted in the register and the company notified. The daily report is mailed to the company and the register retained by the agent. She testified this was as her father had taught her, and that, so far as she knew, his policy register was kept in the same way and the entries made at about the time of the transactions and were in accordance with what he did with the different risks, and, upon being shown what purported to be the register entry concerning the lost policy and of each preceding policy issued to plaintiff by defendant during the 10 years previous, she said these were in the handwriting of her father. The several entries were then offered in evidence, including that of the lost policy, which as apparently made when the policy was issued may be set out: “Policy No. 384; name, Miss Eva Cummins; Commencement of risk, Mch. 27, 1908; expiration of risk, Mch. 27, 1909, amount insured, $1,100.00; rate, 1.32; Prem. $14.52. $950.00 On her stock of millinery goods, ladies furnishing goods, ribbons, trimmings, fancy goods and such other goods as are usually kept for sale by dealers in that branch of business, and $150.00 on her show cases, mirrors, carpets, rugs, stands, tables, racks, desks, chairs, stools, millinery holders, millinery tools and appliances, stoves, pipe and fuel, all while contained in the first story and in cellar of the two story brick composition roof building known on Sanborn map of Waukon, Iowa, as number 206, block 1, sheet 2. Other short time insurance permitted on stock in spring and fall but in no case to exceed three-fourths (3/4) of value at time of writing. Co.'s gasoline stove permit attached to policy.” On objection, the entries were excluded.

[3] It may be conceded that, even though plaintiff can resort to secondary evidence to prove the lightning clause was attached to the policy, this must be the best attainable. Though the rule seems to be laid down broadly in England that there are no degrees in secondary evidence, the current of authority is otherwise in this country. Harvey v. Thorpe, 28 Ala. 250, 260, 65 Am. Dec. 344; Cornett v. Williams, 20 Wall. 226, 246, 22 L. Ed. 254;Wilson v. South Park Commissioners, 70 Ill. 46. And this court seems to be committed to the American doctrine. Conger v. Comverse, 9 Iowa, 554; Higgins v. Reed, 8 Iowa, 298, 74 Am. Dec. 305; Zalesky v. Ins. Co., 102 Iowa, 512, 70 N. W. 187, 71 N. W. 433. [4] But the question does not arise in this case for the reason that the entries offered were not admissible at all. They were mere memoranda made by the agent of the company, and not verified by any one knowing the facts recited therein. Quite generally such private entries are excluded whether made by a party to the controversy, or his agent, as in the nature of self-serving declarations. Taylor v. Ry., 80 Iowa, 431, 46 N. W. 64;Lyman v. Bechtel, 55 Iowa, 437, 7 N. W. 673;Hoffman v. Ry. Co., 40 Minn. 60, 41 N. W. 301;Kellogg v. Webster, 140 Wis. 341, 122 N. W. 737;Connor v. Ry., 56 Wash. 310, 105 Pac. 634, 25 L. R. A. (N. S.) 930, 134 Am. St. Rep. 1110;Strauss v. Insurance Co., 9 Colo. App. 386, 48 Pac. 822;Railway Co. v. Allison, 115 Ga. 635, 42 S. E. 15;Newhall v. Appleton, 102 N. Y. 133, 6 N. E. 120. And in the absence of statute the rule is not otherwise where the person making the memoranda has since died. Luke v. Koenen, 120 Iowa, 103, 94 N. W. 278; Kellogg v. Webster, supra; Avery v. Avery, 49 Ala. 193. Numerous decisions hold that memoranda or entries of many items which are verified by a witness having knowledge thereof may be received in evidence, not as evidence apart from the oral testimony, but in connection therewith as memoranda made at the time and verified as correct. State v. Brady, 100 Iowa, 195, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560;Curtis v. Bradley, 65 Conn. 99, 31 Atl. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177. Of course, there are exceptions as the admissibility of entries of notaries and bank officials in matters of protest, presentation, and the like of negotiable instruments. Nicholls v. Webb, 8 Wheat. 326, 5 L. Ed. 628;Welsh v. Barrett, 15 Mass. 380. And possibly of the record of the movement of trains made by a train dispatcher. Donovan v. Ry., 158 Mass. 450, 33 N. E. 583. But some courts hold that even train sheets, to be admissible, must be verified by witnesses having knowledge of the facts. Bronson v. Leach, 74 Mich. 713, 42 N. W. 174;Pittsburg Co. v. Noel, 77 Ind. 110;...