Eno v. Adair Cnty. Mut. Ins. Ass'n
| Decision Date | 22 October 1940 |
| Docket Number | No. 45355.,45355. |
| Parties | ENO v. ADAIR COUNTY MUT. INS. ASS'N. |
| Court | Iowa Supreme Court |
ENO
v.
ADAIR COUNTY MUT. INS. ASS'N.
No. 45355.
Supreme Court of Iowa.
Oct. 22, 1940.
Appeal from District Court, Adams County; H. H. Carter, Judge.
Action at law to recover damages for a loss by fire, under an insurance policy. A jury was waived, and on a trial at law to the court, there was a judgment for the plaintiff from which the defendant appealed.
Reversed and remanded.
[294 N.W. 324]
Lee R. Watts, of Corning, for appellant.
Ed Fackler, Jr., of Corning, for appellee.
BLISS, Justice.
The policy sued upon was issued by the defendant to the plaintiff on June 22, 1929, and provided insurance for the property covered, against loss by fire and lightning, for a period of ten years. The application was signed by the plaintiff by her husband, J. D. Eno. The buildings insured were on a farm owned by plaintiff, and one of the buildings was a barn. It was this building which was burned. In the application, the following appears: “Item 37. Engine? No. Kind? ------ Where? ------.” The application contained the statement that the applicant would immediately notify the secretary of the defendant of any “new exposure that may increase the hazard,” and the further statement that the facts and circumstances set forth were true, and that the applicant would be governed by Articles of Incorporation and rules then in force. The policy contained copies of the application, the Articles of Incorporation, and the By-laws of the Association. Section 11, of the latter, provided as follows: “This Association shall not be liable for loss or damage which may occur under any of the following conditions: By design; culpable neglect of the insured; automobiles stored in barns; gasoline engines, or other implements or vehicles using gasoline or oil for fuel, operated in barns; * * * Any untrue statement in the application for insurance materially affecting the risk shall render the policy void.”
Plaintiff's petition alleged the issuance of the policy; the total loss of the barn by fire on March 7, 1939; “that said loss did not originate by any act, design or procurement on the part of the plaintiff;” and that due proof of loss for $1,000 was made, which defendant refused to pay. A copy of the policy was attached to the petition.
The answer of defendant admitted the execution of the policy, but denied that the copy attached to the petition was a full and true copy, and denied generally, except as
[294 N.W. 325]
admitted. It set out the portion of the application and policy, above quoted, and stated that plaintiff had violated these provisions by installing in the barn a gasoline engine which she used and operated therein without the knowledge or consent of defendant, and thereby constituted a new exposure that materially increased the hazard of insurance, and failed to notify the secretary of defendant of such facts, and that the loss sued upon was caused by the wrongful use and operation of said gasoline engine.
For reply the plaintiff alleged “that the use and occupancy of said barn, together with all of the installations therein, was known to the defendant at and prior to the time of the fire, that defendant accepted premiums for the insurance with full knowledge of all of the conditions concerning the hazards, use and occupancy of said barn and thereby waived any provisions of its policy regarding the same and defendant is estopped and barred in setting up defense on account thereof.”
The record establishes that a gasoline engine had been installed in the barn and had been used to operate a milking machine, and that it was in the barn at the time of the fire. Just when it was installed does not appear. Plaintiff introduced no evidence to establish the allegations of her reply, and there was no proof thereof. The only witness on behalf of plaintiff was her husband. He identified the policy and testified that the barn described therein was burned for a total loss on March 7, 1939. The policy was introduced in evidence. On cross-examination he testified that his wife “is not here; she is not in this country and was not here at the time of the fire.” He also testified that he signed her name to the application, “her not being there, you see,” and that he handled all matters in connection with this insurance policy, and that he “had authority to sign her name and all that sort of thing, and do business for her generally.” The record discloses that the plaintiff lives in California and has lived there for several years, and that her husband has operated the farm. The plaintiff owned the farm. Just what the arrangement was between the plaintiff and her husband for operating the farm does not definitely appear. The only evidence bearing on the matter appears in these questions and answers:
“Q. You farmed this land that appears in your wife's name? A. Yes.
Q. You were a tenant on the place, were you, or farming it as her husband? A. Yes.”
This interrogation on cross-examination then took place:
“Q. Were you present when the barn burned? A. Yes.
Q. What caused the fire? Mr. Fackler: That is objected to as not cross-examination.
The Court: Objection sustained.”
Plaintiff then rested her case. The sustaining of this objection is the basis of appellant's first assignment of error. We will discuss the matter later.
The defendant then called the husband as its witness, and when he had answered that he had just testified in behalf of plaintiff, the plaintiff objected to any testimony from the witness as he was the husband of plaintiff and was not required to testify in the action in any matters against the wife, and she claimed the privilege. The objection was sustained. The witness then testified that he was living on the farm at the time the barn burned, and that his wife was not then living there with him. He was then asked where his wife was living, and plaintiff's objection that the witness “is an opposing party in contravention of Code, Section 11260” was sustained. Defendant then offered to prove plaintiff lived in California and had lived there for a long time, both before and since the fire; that all matters in connection with the insurance had been handled by her husband as her agent; that the farm was managed and controlled by him, not as a tenant, but as a beneficial owner of the land, and that he was the real party in interest. The court sustained the objection to the offer because the matters stated had not been pleaded.
The defendant then put Mr. Beaman, the president of the defendant, on the witness stand, and he testified that, two or three days after the fire, he and Mr. Miller, defendant's vice president, called upon Mr. Eno at his home, where he was confined to his bed because of severe burns received when the gasoline exploded. He testified that Mr. Eno, on inquiry as to how the fire started, told them that the hired man went out to milk, the morning of the fire, and started the engine and milked five or six cows and the engine stopped and he couldn't get it started; that the hired man then came to the house and told Eno about it and asked what should be done;
[294 N.W. 326]
that Eno said he went down and they did not have any luck and couldn't start it, and concluding that the gas must be faulty, he (Eno) started to draw the gas from the engine and change it and there was a lantern in the barn where the engine was...
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