Germinder v. Machinery Mut. Ins. Ass'n

• Decision Date: 23 May 1903
• Citation: 94 N.W. 1108,120 Iowa 614
• Parties: WILLIAM GERMINDER, Appellee, v. THE MACHINERY MUTUAL INSURANCE ASSOCIATION OF WATERLOO, IOWA, Appellant
• Court: Iowa Supreme Court

94 N.W. 1108

120 Iowa 614

WILLIAM GERMINDER, Appellee, v. THE MACHINERY MUTUAL INSURANCE ASSOCIATION OF WATERLOO, IOWA, Appellant

Supreme Court of Iowa, Des Moines

May 23, 1903

Appeal from Pocahontas District Court.--HON. A. D. BAILIE, Judge.

ACTION at law on a policy of insurance issued to indemnify plaintiff against loss or damage by fire or lightning on a steam engine, separator, stacker, self-binder, weigher, and water tank. Trial to a jury, verdict and judgment for plaintiff and defendant appeals.

Reversed.

J. H Allen and W. N. Birdsall for appellant.

Heald & Ralston and Frank Farrell for appellee.

OPINION

DEEMER, J.

The separator, stacker, self-binder, and weigher covered by the policy of insurance were destroyed or damaged by a fire which occurred about 9:30 o'clock in the evening of November 1 1899. Defendant pleaded certain false and fraudulent representations made by plaintiff in his application for insurance concerning the value, condition, and operation of the threshing outfit, and averred that the fire was caused by plaintiff himself. In reply, plaintiff averred that defendant's agent wrote the application, and stated that he was advised by said agent to give the cost price of the machinery as its value; that defendant knew of said representations, and was estopped from disputing the value of the property, or from claiming that the statements regarding value contained in the application were false. These were the issues on which the case was tried, resulting in the verdict hitherto stated.

Defendant admitted during the trial that proper proofs of loss were made by plaintiff, but plaintiff was permitted to testify, over defendant's objections, that the adjuster before whom the proofs of loss were made promised to pay plaintiff $ 420 within sixty days from that time. As plaintiff alleged such an agreement in his petition, and as there was no attack thereon at any time, there was no error in receiving the evidence. Moreover, part of the answer was responsive to a question which did not indicate that any such a promise was called for, and defendant did not move to strike out the part of the answer which referred to the promise. The court's ruling on the question was proper, or at least not prejudicial. The answer complained of was not responsive, but defendant did not move to strike it for that reason; hence the trial court had no opportunity to pass upon the question now presented. Defendant does not now attack the sufficiency of the pleading setting up such a promise; hence, in any aspect of the case, the ruling was correct.

II. A witness was asked as to the reasonable value of the threshing outfit, enumerating the constituent parts thereof, at the time the policy was issued. Objection to the question was sustained. There are two reasons why the ruling was correct: In the first place, the question omitted one part of the outfit, to wit, the self-feeder, and an estimate of the entire property, based on the omission of a material part thereof, would have been of no value and incompetent: (2) the witness had theretofore given his estimate of the value of the separate items of property.

III. A witness introduced by defendant to prove some very material circumstances tending to show...