Des Moines Ice Co. v. Niagara Fire Ins. Co.

• Decision Date: 15 October 1896
• Citation: Des Moines Ice Co. v. Niagara Fire Ins. Co., 99 Iowa 193, 68 N.W. 600 (Iowa 1896)
• Parties: THE DES MOINES ICE COMPANY v. THE NIAGARA FIRE INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

68 N.W. 600

99 Iowa 193

THE DES MOINES ICE COMPANY v. THE NIAGARA FIRE INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 15, 1896

Appeal from Polk District Court.--HON. S. F. BALLIETT, Judge.

ACTION at law upon a policy of insurance against loss by fire.There was a trial by jury, verdict and judgment for the plaintiff and defendant appeals.

Affirmed.

R. W Barger for appellant.

Cummins & Wright for appellee.

OPINION

ROTHROCK, C. J.

I.The policy of insurance upon which the action is founded, was issued by the defendant to the plaintiff on the eleventh day of April, 1891.The property insured was an ice house on the shore of Lost Island Lake, in Palo Alto county, in this state.The insurance was for one year, and for the sum of one thousand dollars.The ice house was destroyed by fire on the fifteenth of October, 1891.The defendant, by its answer admitted the issuing of the policy, and the receipt of notice and proofs of loss.One defense interposed by the answer was as follows: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described be or become vacant or unoccupied, and so remain for ten days;" and defendant avers that at the time of the alleged loss, and for more than sixty days prior thereto, said building was vacant or unoccupied, without any agreement whatever therefor by defendant.The plaintiff demurred to this division of the answer, and the demurrer was overruled.Afterwards the plaintiff filed a reply to the answer, in which the following facts were pleaded: "Plaintiff denies that the insurance policy referred to in said paragraph, contains the clause set out in said paragraph, but says that said policy does contain the following provision: 'The entire policy shall, unless otherwise provided by agreement indorsed hereon, be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days;' all of which will more fully appear by reference to a copy of said policy attached to the original petition herein, which is made a part hereof, and plaintiff says that by said policy there was insured a frame ice house building, as will appear by reference to said policy, which said frame ice house building was never intended for occupancy, either by owner, tenant, or any one else; that the fact that it was not so intended for occupancy was well known to said defendant and all its officers and agents, both at the time said policy was issued, and at all times thereafter.And plaintiff says that because of said facts it is wholly immaterial whether said building was so vacant at any time, for that said clause in reference to vacancy, never had any reference to said insured property."The defendant moved to strike out the part of the reply above set out, on the ground that the matters therein stated were merely a repetition of the ground of demurrer to the fourth division of the answer.The motion was overruled.It is contended on behalf of appellant that this ruling was error, because the question as to the occupancy or vacancy of the building was determined by the ruling on the demurrer.We have set out that part of the answer to which the demurrer was directed, and also the reply, for the reason that it is apparent therefrom that the position of counsel for appellant is not well taken.That part of the answer which was demurred to omitted the clause which related to occupancy by the owner or tenant.The same question was not presented by the demurrer and the reply.It is thought by counsel that because a copy of the policy was exhibited with the petition, and was part thereof, the issues presented were identical.If counsel desired to make the question he now presents, he should have correctly set out that part of the policy in his answer.The case is not within the rule announced in Wing v. District Township, 82 Iowa 632(48 N.W. 977), cited by counsel for appellant.

II.The plaintiff proved the destruction of the building by fire except a small part of the roof, which was removed before the fire, and on the same day.It is said that the whole building did not belong to the plaintiff.This is a mistake of fact.There were two ice houses, separated by a party wall.The policy of the insurance was on one of the houses, and it was owned by the plaintiff.The fact that another building adjoined the one insured by this policy, was a matter of no consequence in this controversy.It is said that when the plaintiff closed the introduction of its evidence, there was no showing of the value of the building which was insured; and it appears that the defendant presented a motion to the court to direct a verdict for the defendant.The motion was overruled, and the ruling was right.Section 1734, of McClain's Code, is in these words: "In any suit or action, brought in any court in this state on any policy of insurance, against the company or association issuing the policy sued upon, in case of the loss of any building so insured the amount stated in the policy shall be received as prima facie evidence of insurable value of the property at the date of the policy; provided, nothing herein shall be construed to prevent the insurance company or association from showing the actual value at the date of the policy, and any depreciation in the value thereof before the loss occurred; provided, further, such insurance company or association shall be liable for the actual value of the property insured at the date of the loss, unless such value exceeds the amount stated in the policy, and, in order to maintain his action on the policy, it shall only be necessary for the insured to prove the loss of the building insured, and that he has given the company or association notice, in writing, of such loss."It does not appear what evidence was introduced by the defendant under the provisos in this statute.The court instructed the jury that, if the plaintiff was entitled to recover the value of that part of the roof which had been removed, it should not be included in estimating the loss.In view of that instruction, and the further fact that the verdict of the jury was for four hundred and thirty-one dollars, being less than one-half of the amount of the insurance, and no question is made that the verdict was excessive, the contention that a verdict should have been directed for the defendant, and the argument in support thereof, is well answered by the plain and explicit language of the statute.It is true, a small part of the roof had been removed, and it was the right of the defendant to show the value thereof as depreciating the value of the building.And we infer from the record, the argument of counsel for appellant, and the charge of the court, to the jury, that the value of the boards removed from the roof was fully established.The claim of counsel for appellant that the plaintiff should have shown by evidence the value at the time of the loss, because...