Green v. Des Moines Fire Ins. Co.

• Citation: 84 Iowa 135,50 N.W. 558
• Parties: GREEN v. DES MOINES FIRE INS. CO.
• Decision Date: 16 December 1891
• Court: United States State Supreme Court of Iowa

84 Iowa 135

50 N.W. 558

GREEN

v.DES MOINES FIRE INS. CO.

Supreme Court of Iowa.

Dec. 16, 1891.

Appeal from district court, Appanoose county; DELL STEWART, Judge.

Action upon a policy of insurance. There was a verdict and judgment for plaintiff. Defendant appeals. Affirmed.Cole, McVey & Clark, for appellant.

Tannehill, Vermillion & Vermillion, for appellee.

BECK, C. J.

1. The petition alleges the destruction by fire of the property insured, and that 4 days thereafter plaintiff wrote to defendant, stating in his letter the fact of loss, and that he had no knowledge of the origin of the fire. Receiving no reply, about 15 days after, he wrote again, calling attention to his former letter. A reply was promptly returned to the second letter, advising plaintiff that the officers of the defendant “expected to have some one visit” the place of the loss “before this time, but we have been very busy. We will endeavor to do our part in the matter as soon as possible.” The petition alleges that defendant made no objection to the notice of loss contained in plaintiff's two letters, and made no objections that the statements in the letters as to the loss are not sworn to by plaintiff, or that the letters and notice of the loss were not accompanied by an affidavit, as required by statute, and failed to notify plaintiff that an affidavit was required, and sent an adjuster to the premises, who fully investigated the cause of the fire, and urged defendant's local agent to settle the loss for less than the sum insured. Plaintiff alleges that, by these acts of defendant, it waived objection to the sufficiency of the proof of loss, and the notice. The defendant demurred to the petition on the grounds that it shows no proof of loss was furnished defendant, and the facts pleaded do not constitute in law a waiver of such proof. The demurrer was overruled.

2. The policy upon which the action was based contains conditions for notice of loss, the writing to be given by assured, and for payment thereof by the defendant “immediately upon receipt of proper proofs.” The evidence shows the description of the property covered by the policy, and that plaintiff soon thereafter wrote to defendant, notifying it of the total loss of the property, and stating that he had no knowledge of the particulars of the fire, and some other matters. This letter contained statements which should have appeared in the proof of the loss, had it been made. To this letter, and another written subsequently, the defendant replied as stated in the petition above quoted. Both sides of the case recognize the fact that whether there was a waiver of the provision of the statute and the condition of the policy requiring proof of loss by affidavit, as required by the statute, is the only question in the case. The policy and the statute require that plaintiff shall show, to entitle him to recover, “the loss of the...