Davis v. Anchor Mut. Fire Ins. Co.

• Decision Date: 19 October 1895
• Parties: DAVIS v. ANCHOR MUT. FIRE INS. CO.
• Court: Iowa Supreme Court

96 Iowa 70

64 N.W. 687

DAVIS

v.ANCHOR MUT. FIRE INS. CO.

Supreme Court of Iowa.

Oct. 19, 1895.

Appeal from district court, Warren county; J. H. Henderson, Judge.

Action on a policy of fire insurance. Judgment for the plaintiff, and the defendant appealed. Affirmed.W. F. Powell, J. E. Williamson, and Sullivan & Sullivan, for appellant.

W. H. Berry, for appellee.

GRANGER, J.

1. At the impaneling of the jury, one Whitney was examined as to his qualifications to sit as a juror; and some of his answers showed that he had formed “some opinion,” and would “enter upon the trial of the case with some bias.” Both the court and counsel for defendant questioned the juror after these statements, and the defendant challenged for cause, and the challenge was overruled. Complaint is now made of the ruling. Appellee urges that the challenge, being merely “for cause,” is insufficient. The same point was considered in Bonney v. Cocke, 61 Iowa, 303, 16 N. W. 139, and such a challenge was held to be too indefinite. In a challenge for cause, the cause of the challenge should be stated. The causes for such challenge are specified in Code, § 2772.

2. The policy covered an insurance of $600 on a building, and “$600 on a stock of implements, consisting chiefly of wagons, buggies, plows, cultivators, * * * binders, pumps, and all such goods, not more hazardous, kept for sale in a general implement store.” In the stock was a quantity of binding twine, and the court permitted the jury to consider whether or not it came within the terms of the policy. This action of the court is said to be error, and it is said that binding twine could not be included in “goods kept in a general implement store.” The policy shows, from its specifications, that it was intended mainly to cover agricultural implements; that is, that the stock was of that character. It did not attempt to specify all the kinds of property insured, and hence other articles than those named may be included, if they are such as are kept in a general implement store, and the inference is that the store insured was such a one. Among the articles specified are binders, and twine is essential to the operation of binders. It seems to us that, in a proper sense, it could be regarded as an implement, within the meaning of the policy. An “implement” is defined to be “that which fulfills or supplies a want or use.” The word has an especial application to an instrument, tool, or utensil, as supplying a requisite to an end. Binding twine comes within the general definition of the word, and the scope of the provision of the policy warrants such a use of it.

3. The plaintiff was a witness, and testified as to the fact of the fire; that it occurred on the morning of June 20, 1893; as to what was burned; and as to the value of the personal property. On cross-examination, defendant attempted to show where plaintiff was on the night of the fire, which the court excluded. Complaint is made of the ruling, and it is said that the purpose was to show that the plaintiff could have saved property from the fire, if he so wished. The difficulty is, there was no such issue. If the defendant relied on the negligence of the plaintiff, either as defense, or to mitigate the damages, it was a matter to be pleaded and proven. It is further said that they had a right to show the kind of a building, what the material was, and how long used. We do not see what for. The law fixed the measure of recovery, prima facie, at the amount stated in the policy, and such inquiries could only go to the value of the building. Plaintiff had not testified on the direct examination as to that fact. There was no error in the ruling.

4. The following is the sixth instruction given: “The policy covering the goods and merchandise described the same as follows: ‘On stock of implements, consisting chiefly of wagons, buggies, plows, cultivators, corn planters, mowers, reapers, binders, pumps, and all such goods, not more hazardous, kept for sale in a general implement store.’ Under this provision of the policy, it would include all of the articles specifically described, and all of such other articles ordinarily kept for sale in a general implement store, but would not include articles kept for sale, such as are not so ordinarily kept in such implement store, and therefore would not include hardware kept for sale, unless such hardware was so usually kept for sale in such general implement store. You are, therefore, only to allow the actual cash value for such property as was destroyed or damaged, as ordinarily and usually is kept in a general implement store.” The complaint is that there was no evidence that hardware was usually kept for sale in an implement store, and that the language of the instruction in relation to hardware is prejudicial. We think that the court might well have said to the jury, in terms, that there could be no recovery for hardware, for plaintiff made no such claim, but, on the contrary, disclaimed the right in the following language: “Couns...