Furbush v. Consolidated Patrons' & Farmers' Mut. Ins. Co.

• Decision Date: 21 November 1908
• Citation: 118 N.W. 371,140 Iowa 240
• Parties: F. C. FURBUSH, Appellee, v. CONSOLIDATED PATRONS' OF THE FARMERS MUTUAL INSURANCE COMPANY Appellant
• Court: Iowa Supreme Court

118 N.W. 371

140 Iowa 240

F. C. FURBUSH, Appellee, v. CONSOLIDATED PATRONS' OF THE FARMERS MUTUAL INSURANCE COMPANY Appellant

Supreme Court of Iowa, Des Moines

November 21, 1908

Appeal from Buchanan District Court.--HON. FRANKLIN C. PLATT, Judge.

SUIT in equity upon a policy of fire insurance. Defendant denied liability to plaintiff, who is an assignee of the policy pleaded that the loss was not due to fire; increase of hazard, and violation of the by-laws of the company. Trial to the court. Judgment for plaintiff, and defendant appeals.--Affirmed.

Decree Affirmed.

E. E Hasner, for appellant.

Springer & Smith and H. C. Chappell, for appellee.

OPINION

DEEMER, J.

Defendant is a farmers' mutual fire insurance company, organized under the provisions of sections 1759-1767, chapter 5, title 9, of the Code, and as such it issued the policy in suit August 18, 1902, to one C. W. Bland covering a frame farm dwelling with porches, etc. The premises upon which the dwelling stood were sold by Bland to plaintiff some time in the year 1905, and on March 11th Bland made the following indorsement on the back of the policy: "Dated March 11 1905. Secretary Buchanan County Mutual Fire Insurance Company--Sir: I hereby transfer the within policy to F. C. Furbush. I am, sir, yours, C. W. Bland." The property insured was destroyed in the manner hereinafter stated, on or about March 18, 1905, and on April 1st of that year the secretary of the company wrote under the assignment the following: "Approved April 1, 1905. Wm. Decker, Secy." One of defendant's by-laws reads as follows: "In case of transfer of property, the policy of insurance may be transferred with the property sold, if the parties so desire. In all cases this shall be done in writing, and the party purchasing assuming all the privileges, duties and responsibilities of the retiring member, and the secretary shall enter the transaction on the books of the company." March 7, 1905, Bland wrote the company as follows: "Walker, Iowa. Mr. Decker--Dear Sir: I have sold my farm to F. C. Furbush. He wants me to transfer my insurance to him. Will it be all right? If so, transfer it to him. Yours truly, C. W. Bland. P. S. Please answer and oblige." To this the secretary responded as follows: "Independence, Iowa, March 10, 1905. C. W. Bland, Walker, Iowa.--Dear Sir: Mr. Furbush was here, and understood that you would transfer the insurance to him. It will be all right. Mutually yours, William Decker." The assignment itself was never presented to the defendant company, and its books did not show a transfer to plaintiff. After proofs of loss were made, defendant refused to pay because the policy had not been transferred to plaintiff, because he had no permit to establish a gas plant, and because his loss was due to an explosion, and not to fire. Section 9 of defendant's by-laws reads as follows: "If now, or hereafter, there may be other insurance on any property hereby insured; or if the premises described in this policy be or become vacant, unoccupied or uninhabited for more than ten consecutive days; or if the risk be increased by any means within the knowledge of the assured; or if interest of the assured be or become other than the entire, unconditional and sole ownership of the property; or if this policy be assigned, then and in every such case, this policy shall be void unless otherwise provided by agreement and indorsed hereon by the secretary of the company. Provided, however, that no permit shall be given for a building to remain vacant for a longer period than thirty days."

It appears from the testimony that in November, 1902, Bland put an acetylene gas plant in his house, and that the house was injured or destroyed by reason of the escape of gas from this plant either into the cellar or a room, or rooms, of the house. The testimony as to the manner of the loss is briefly as follows: On the evening of March 18, 1905, two of plaintiff's children went into the cellar of the house to fill the generating machine with water and carbide. They had no light with them, but there was a light burning in one of the rooms on the first floor. About the time the generator was filled plaintiff's wife, who was on the first floor with some of her children, smelled gas, and one of the children struck a match for the purpose of lighting a lamp to take some of the other children to bed. As she lighted the match, there was a flash of light all over the house, then a report, and almost immediately the plastering began to fall. The hired man opened an outside door as the flash came, and this seemed to light up the "whole out of doors." The flames ran into the cellar, and immediately after the explosion some of the furniture was found to be on fire, as also were the studdings and rafters, but these fires were extinguished. It is shown by the testimony that gas generated by carbide will not explode save as it is ignited by fire. In other words, that it does not explode from chemical action. Defendant contends that the establishment of the acetylene plant increased the hazard; that this was not assented to by it; that the loss was due to an explosion, and not to fire; and that it was not covered by the policy. The policy indemnifies against loss or damage by fire, and there are no exceptions contained thereon.

I. There can be no doubt under the testimony that the provisions of the by-laws with reference to the assignment of the policy, and to the increase of hazard after the policy was issued, were not strictly complied with, but plaintiff relies upon a waiver of these provisions. Defendant contends that there can not be a waiver by an agent or officer of the company, for the reason that its character is such that waiver is not permissible; and its counsel cites Brewer v. Chelsea Co....