Dyer v. Des Moines Ins. Co.

• Decision Date: 27 October 1897
• Citation: 72 N.W. 681,103 Iowa 524
• Parties: DYER v. DES MOINES INS. CO.
• Court: Iowa Supreme Court

103 Iowa 524

72 N.W. 681

DYER

v.DES MOINES INS. CO.

Supreme Court of Iowa.

Oct. 27, 1897.

Appeal from district court, Monroe county; M. A. Roberts, Judge.

The plaintiff shows as his cause of action in substance as follows: That on October 15, 1894, the defendant, a duly-incorporated insurance company, issued to him its policy of insurance against loss or damage by fire upon the lower story of a certain two-story building not exceeding $700, and on certain furniture and goods therein not exceeding $200, for the period of one year; that on the 11th of January, 1895, said property was totally destroyed by fire, without fault on his part, and that he thereafter gave the defendant written notice of said loss, and within 60 days from the date of said loss he gave the defendant proof thereof; that the defendant fails and refuses to pay said loss, or any part thereof. He alleges that a mistake was made in writing said policy in describing the property insured as being all of said building instead of the lower or first story thereof, which alone belonged to him, and of which fact he fully informed the defendant's agent at the time the application was taken. He prays that said mistake may be corrected, and for judgment on the policy, as corrected, for $839.32, with interest. The defendant answered, admitting that it issued the policy on the building and goods, written as alleged; denies that any mistake was made in writing the policy, as alleged; and avers that it was written as stated by the assured. Defendant alleges that in his application plaintiff answered that his title was by warranty deed, and did not disclose the fact that he had no title to the upper story of said building; and that because thereof the policy is, by its terms, void. Defendant further alleges that plaintiff did not give notice and proofs of said loss within the 30 days, nor in the manner, required by the policy; and that there has been no waiver of any of the conditions of said policy by the defendant. “The defendant admits that on the 8th day of March, 1895, it received through the mails a paper upon which was written a list of figures; but said paper did not contain a statement of the origin of the fire, or how the loss occurred, and was not signed by the assured, nor sworn to, nor did it contain an itemized statement of the actual cash value of the property claimed to have been lost by the fire, nor did it possess the essentials plainly pointed out in the policy and in the statutes necessary to make it a proof of loss.” On the day following the defendant returned said paper to plaintiff through the mail, with a letter as follows: “Des Moines, Iowa, March 9, 1895. Eli Dyer, Esq., Foster, Iowa--Dear Sir: We received from you yesterday a list of some figures, but, as it contains none of the elements necessary to comply with the policy and statute as to proofs of loss, we return the same herewith, and respectfully refer you to the policy and statute governing such cases. Yours, very truly, J. S. Clark, Sec'y.” Defendant states that, notwithstanding assured was notified of the deficiency of the paper, he did not thereafter furnish proofs of loss as required by the policy. Defendant asked to be dismissed, with costs. Plaintiff, in reply, denies the right of the defendant to insist upon any of the defenses set up in its answer, for the following reasons: That when defendant's agent was taking the application he was informed that there was a mortgage on said premises, amounting to $65, which was duly recorded; that the plaintiff claimed to be the owner of the undivided one-half of the ground on which the building stood; that his claim of title was based upon a deed, not present, but which was on record, which he asked said agent to examine, and that he did not state that he held title by warranty deed; that the application was signed in blank, said agent agreeing to fill the blanks when he examined the record as to plaintiff's title; wherefore plaintiff asked to have said statement reformed so as to conform to the facts. Replying to the matters set forth as to proofs of loss, plaintiff says that by said letter defendant failed to point out any specific objections to said proofs of loss, “for which failure it has waived the right, and is now estopped from making any of the objections it now urges to the insufficiency of said proofs of loss.” Plaintiff alleges that on the 11th day of March, 1895, he transmitted to defendant further proofs of loss, which were returned to him on the day following, with an accompanying letter that will be hereafter noticed. Plaintiff states that in this letter the defendant wholly failed to specify any one of the objections now urged against the sufficiency of said proofs of loss. The case was transferred to and tried as in equity, and a decree rendered finding that the mistakes alleged do exist by mutual mistake of the parties, and decreeing that the policy be corrected accordingly. Judgment was entered in favor of the plaintiff for $700, with interest from June 7, 1895. Defendant appeals. Affirmed.McVey & Cheshire, for appellant.

T. B. Perry and N. E. Kendall, for appellee.

GIVEN, J.

1. Appellant does not complain of that part of the decree granting a reformation of the policy, nor could it well do so, for the uncontradicted evidence fully sustains the decree in that particular. Appellant's contention is that the court erred in rendering judgment against it, “for the reason that no proofs of loss as required by the policy and the statute were ever made or delivered to the defendant company.” Appellee contends that “defendant failed to point out any specific objections to said proofs of loss, or any...