Eiseman v. Hawkeye Ins. Co.
Decision Date | 07 March 1888 |
Citation | 36 N.W. 780,74 Iowa 11 |
Parties | EISEMAN v. HAWKEYE INS. CO. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Pottawattamie county; A. B. THORNELL, Judge.
Simeon Eiseman brought this action against the Hawkeye Insurance Company upon a policy of insurance issued by it to recover the value of the property insured, which was destroyed by fire. Judgment for plaintiff, and defendant appeals.Phillips & Day and George R. Sanderson, for appellant.
Wright, Baldwin & Haldane, for appellee.
It is necessary to consider but a few of the numerous errors assigned and argued by appellant. The facts upon which the respective objections to the judgment are based will be stated in connection with the discussion of each.
1. The district court, in stating to the jury the issues involved in the case, informed the jury that defendant admitted in its answer that a part of the goods and property covered by the policy was injured or destroyed by fire. It is insisted that this is an erroneous statement of the effect of the pleadings. The defendant, in its answer, admits that a fire occurred in the building wherein the insured goods were situated when the policy was issued, but “upon information and belief” denies that any part of the property was injured by the fire. The pleadings of defendant were verified. We need not inquire whether this language of the answer ought to be taken as a denial of the allegation as to the destruction of the property, for the reason that if the instruction just referred to be regarded as erroneous, it did not, in our opinion, work prejudice to defendant, for the reason that in two other instructions the jury were informed that, to authorize a verdict for plaintiff, they must find from the evidence that the property or a part of it was injured or destroyed by fire. We think by no possibility could the jury have been misled, and thereby found the loss or injury of the goods upon the pleadings. The two explicit instructions were doubtless understood by them and followed. As they were directed to find the destruction or injury to the goods from the evidence, they doubtless did not consider the statement complained of as nullifying the direction of the other instructions.
2. The court, in the first instruction, directed the jury that to entitle plaintiff to recover, they must find among other things that plaintiff “gave defendant notice of the fire and the loss thereunder as required by the terms of the policy.” Counsel insist that this instruction denies the necessity of proof of loss. We think differently. This condition of the policy as to notice of loss plainly implies that proof of loss shall accompany and be a part of it. Hence, notice of loss “as required by the policy” would contain what counsel call “proof of loss.”
3. The court gave the jury the following instructions, (they fully state the facts and rules of law applicable thereto announced in them:) ...
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...31 Neb. 312, 47 N. W. 935;Insurance Co. v. Bachelder, 32 Neb. 490, 49 N. W. 217, 29 Am. St. Rep. 443. In the case of Eiseman v. Insurance Co., 74 Iowa, 11, 36 N. W. 780, it was said: “If plaintiff in an action upon a policy of fire insurance relies upon a waiver by the company of conditions......
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