Farmers' Handy Wagon Co. v. Cas. Co. of Am.

• Decision Date: 25 October 1918
• Docket Number: No. 30097.,30097.
• Citation: 169 N.W. 178,184 Iowa 773
• Parties: FARMERS' HANDY WAGON CO. v. CASUALTY CO. OF AMERICA.
• Court: Iowa Supreme Court

184 Iowa 773

169 N.W. 178

FARMERS' HANDY WAGON CO.

v.CASUALTY CO. OF AMERICA.

No. 30097.

Supreme Court of Iowa.

Oct. 25, 1918.

Appeal from District Court, Polk County; W. S. Ayers, Judge.

Supplemental opinion on a rehearing.

For former opinion, see 167 N. W. 204.Clark, Byers & Hutchinson, of Des Moines, for appellant.

Carr, Carr & Evans, of Des Moines, for appellee.

SALINGER, J.

[1][2] I. For some reason the original opinion gave no consideration to two points presented. The appellant contends that, as matter of law, the work upon which the employé Pickett was engaged was not ordinary repairs and maintenance, but was new construction and an alteration of a building or plant. If that be so, the policy did not attach to injury sustained by Pickett. The point must be considered with application of the ordinary appellate review rule that there will be no interference if the finding below has any substantial evidence in its support. That Pickett was not engaged in alteration is supported, for one thing, by presumption; that is to say, “mere doubt will be resolved in favor of ‘repair and maintenance.’ ” Ross v. Sheldon, 176 Iowa, 624, 154 N. W. 499. In that case we declare there is such presumption, and:

“The line of demarcation between repair work on one hand and construction work on the other is not always easily discernible. Repair often, if not usually, involves more or less construction and substitution and likewise involves betterment and improvement. * * * The trend of the cases thus far decided indicates that labor and betterment upon an interstate line of railway will not be deemed as new construction work, unless it is clearly such.”

Applying this to the evidence, we cannot say that the verdict which involves a finding that the work done by Pickett was not an alteration is so utterly lacking in support as that it must be set aside.

[3][4] II. The remaining complaint is presented as follows: In a point “relied on for reversal” it is said:

“The court erred in failing to construe the contract or policy, and to define the words ‘alteration’ and ‘ordinary repairs and maintenance’ as used in said policy, as requested by defendant in its third requested instruction.”

This is not a claim that there was error because said words were not construed at all, and should have been construed in some manner, but is an insistence that the right definition was offered by defendant, and that no equally correct definition was given. In the petition for rehearing, this complaint seems to be broadened, for it is there said:

“That if the question aforesaid was submitted to the jury it was the duty of the court to instruct the jury as to the meaning of the words.”

Brief point 6, the only one on the proposition, is as follows:

“It is the province of the court to construe a contract and give the meaning of the terms used therein, and the court should have construed and defined the terms ‘alteration’ and ‘ordinary repairs and maintenance’ as requested by the defendant.”

In our opinion, the sole question presented at this point is whether the court should have given instruction 3 offered by the defendant. In it “alteration” was defined to mean “a modification or change in a building already constructed, a change or substitution...