Erb v. Fid. Ins. Co.

• Decision Date: 09 December 1896
• Parties: ERB v. FIDELITY INS. CO.
• Court: Iowa Supreme Court

99 Iowa 727

69 N.W. 261

ERB

v.FIDELITY INS. CO.

Supreme Court of Iowa.

Dec. 9, 1896.

Appeal from district court, Carroll county; C. D. Goldsmith, Judge.

Action at law on a policy of insurance to recover for loss caused by fire. After the evidence for each party had been submitted, the court directed a verdict for the plaintiff, and rendered judgment in his favor. The defendant appeals. Affirmed.Dudley & Coffin, for appellant.

Earle & Prouty and F. A. Charles, for appellee.

ROBINSON, J.

On the 22d day of August, 1893, the defendant issued to the plaintiff the policy in suit. It insured him in the sum of $800 for the term of one year against loss or damage by fire on his store furniture and fixtures while contained in a building described, situated in Coon Rapids. On the 9th day of the next September the property insured was destroyed by fire. In due time the plaintiff gave notice, and furnished proofs of loss. The defendant refusing to pay, this action was brought to recover the amount for which the policy was issued. The verdict and judgment were for the sum of $828.

1. The policy in terms permitted concurrent insurance to the amount of $250, and provided that it should be void if the insured then had or should thereafter procure other insurance. On the day the policy was issued, concurrent insurance in the sum of $250 was procured of the Des Moines Fire Insurance Company, and on the next day a policy of insurance was issued by the Merchants' & Bankers' Insurance Company for the amount of $1,000, a part of which was on the property covered by the policy in suit. This was claimed to be such a violation of that policy as to make it void. The plaintiff insists that when it was issued the defendant knew of the other policies, but, notwithstanding that knowledge, issued the policy in suit, and received the premium therefor, and hence waived the provision against additional insurance, and is estopped to assert it. M. M. Cooney was the agent of the plaintiff at Coon Rapids, and the policy in suit was issued through him. He was also agent of the Des Moines Insurance Company, and its policy was issued through him. The plaintiff had a policy issued by the Merchants' & Bankers' Mutual Insurance Company which had nearly expired, and a few days before the policy in suit was issued that policy was delivered to Cooney to obtain a renewal. He was not the agent of the company, but sent for an application, which was filled out by the plaintiff, and returned to him, and the new policy was issued in renewal of the old one on that application. Although the new policy was not made until one day after the policy in suit was issued, Cooney necessarily had knowledge of the fact that it would be issued. The knowledge he had of the additional insurance must be imputed to the defendant, and by issuing the policy in suit with that knowledge it must be held to have consented to the additional insurance. Hagan v. Insurance Co., 81 Iowa, 331, 46 N. W. 1114. Objections are made to the testimony of the plaintiff which showed the knowledge of Cooney of the additional insurance, but we do not find that they are well founded.

2. The policy in suit provides that it shall be void if “the interest of the insured be other than unconditional and sole ownership.” It is said this provision was violated in two instances. The facts in regard to the first are substantially as follows: The property in question was used in a drug store. In August, 1892, the plaintiff entered into an agreement with W. T. James, under which he took possession of the property, and carried on the drug business under the name of W. T. James & Co. until the 6th day of June, 1893. By the terms of the agreement the plaintiff was the owner of all the property used in the business, and James was to receive as compensation for his services one-third of the profits. On the date last named James went to Des Moines to manage a new drug stock, intending to return to Coon Rapids in a short time, but has not yet done so. The plaintiff was not interested in the Des Moines stock, and has carried on the business at Coon Rapids since James left. There has not been a settlement between them, but nothing in that fact, and nothing in the agreement, gave to James any interest in the property insured. Although his name was used in carrying on the business, he appears to have been an employé rather than a partner. Holbrook v. Oberne, 56 Iowa, 324, 9 N. W. 291; 17 Am. & Eng. Enc. Law, 845. But, if that was not the case, and a partnership in fact existed, it was terminated before the policy in suit was issued, and the plaintiff was the sole owner of the insured property. He may be under some obligation to account to James for undivided profits, but not for the insured property. The facts in regard to the other alleged violation are that in December, 1892, the plaintiff made a bill of sale of the stock to his son and to James, and they gave to him promissory notes, and a mortgage which purported to be for the purchase price. The transaction was not intended to operate as a sale, however, and within a few days...