Garver v. Hawkeye Ins. Co.

• Decision Date: 18 June 1886
• Citation: 28 N.W. 555,69 Iowa 202
• Parties: GARVER, ADM'R, v. HAWKEYE INS. CO.
• Court: Iowa Supreme Court

69 Iowa 202

28 N.W. 555

GARVER, ADM'R,

v.HAWKEYE INS. CO.

Supreme Court of Iowa.

June 18, 1886.

Appeal from Polk circuit court.

Action in equity to reform and recover on a policy of insurance against loss or damage by fire or lightning. Partial relief was granted the plaintiff, and both parties appeal.

BECK, J., dissents.

Guthrie & Maley and J. B. Johnson, for appellant.

Smith & Morris and Geo. R. Sanderson, for appellee.

SEEVERS, J.

The property insured was destroyed by fire, and consisted of “one frame barn, hay, grain, mowing-machine, wagons, carriages, farming utensils, and one threshing-machine in said barn; also work horses and livestock in barn-yard or in farm,--all situated and being in the _______ quarter, section 36, township 78, range 34, county of Polk, Iowa.” In the application for insurance the property is described substantially as above stated, and among other questions asked and answered in the application by the assured is the following: “Are you the sole and undisputed owner of said land and the property to be insured?” This question the assured answered, “Yes.” The statements in the application were, by both the policy and application, made warrants. The assured was the owner of a life-estate only in the real estate.

1. That the assured had an insurable interest in the property insured will be conceded if his interest therein had been correctly stated in the application. The question to be determined is materially different. It is whether, because of a misdescription material to the risk, there can be a recovery on the policy. The precise question we are required to determine, is whether the owner of a life-estate is the “sole and undisputed owner” of real estate. In Davis v. Iowa State Ins. Co., 25 N. W. Rep. 745, it was held that the owner of a life-estate did not own an “absolute interest” in real estate; and in Leathers v. Farmers' Mut. Ins. Co., 4 Fost. 259, it was held a tenant by the curtesy in right of his wife “was the owner of an estate for his own life,” and therefore was not the “owner of the buildings insured.” In Bouvier's Law Dictionary the owner of property is said to be one “who has dominion of a thing, real or personal, corporeal or incorporeal, which he has the right to enjoy, and to do with it as he pleases, even to spoil or destroy it as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right.” The owner of a fee-simple title to real estate may commit waste, but the owner of a life-estate cannot lawfully do so. Now, what does “sole owner” mean, or what did the parties understand thereby? Evidently, we think, they meant, and must have understood, that the assured had the fee-simple title. “Sole owner” must mean, it seems to us, that no one else has or owns an interest in the real estate. If one should state that he was the sole owner of real estate, describing it, the bearer would understand that he owned all there was or could be owned; that no one else had any interest therein. If one should covenant in a deed that he was the sole owner of the real estate, such a covenant would be broken if he owned a life-estate only. There is no distinction between “sole owner” and the owner of an “absolute interest” in real estate. A sole interest and absolute interest mean the same thing.

2. The court found and determined that there would be a recovery for the value of two horses insured by the policy; and we are required to determine whether the contract of insurance was an entire or separable contract. If it was the former, then there can be no recovery; if the latter, then there may be. There was but one policy, and the premium paid, or agreed to be paid, was a gross sum; that is, the premium was paid for the insurance of the whole of the property, but there was a separate valuation or amount of insurance placed on the barn and each of the articles or things above mentioned. For instance, the policy provides that the total amount of insurance is $3,800 “on the property hereinafter described, namely: One frame barn, No. 1 on diagram on application, $1,000; * * * No. 300, on work horses, not to exceed $75 on each.” Where there are specifications of separate premiums paid for such insurance, it will be conceded there is a conflict in the authorities as to whether the contract is entire or separate, but we think there is no such conflict where the premium is a single or gross sum. It seems to us this must be so, for there is but a single contract, and but a single consideration, and such a contract must be entire and not divisible. In consideration of the whole premium, all the property named in the policy is insured. One party to such a contract cannot, at his pleasure, make it divisible or entire as his interest may appear. When entered into, it was either the one or the other.

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