Green v. Phx. Ins. Co. of Hartford
| Decision Date | 04 April 1933 |
| Docket Number | No. 41765.,41765. |
| Citation | 247 N.W. 660,215 Iowa 1220 |
| Parties | GREEN v. PHŒNIX INS. CO. OF HARTFORD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Adams County; George A. Johnston, Judge.
Action at law upon a policy of fire insurance. There was a trial to the court resulting in judgment for the plaintiff for the full amount of the policy. The defendant appeals.
Reversed.
D. Cole McMartin, of Des Moines, for appellant.
E. L. Carroll, of Creston, for appellee.
On the 19th day of December, 1929, the then owners of a house and lot in the town of Prescott, Adams county, Iowa, executed to one Jake Stoner their mortgage covering said premises in the sum of $1,500. On the 12th day of January, 1931, said Stoner commenced an action to foreclose said mortgage, and on the 19th day of January, 1931, he applied to the firm of Gauthier & Larson, agents of defendant-company at Corning, Iowa, for insurance upon the house on said lot. Larson, one of the members of said firm, made out an application for insurance to the defendant, Phœnix Insurance Company of Hartford, Conn., and a few days thereafter a policy for $1,800 was issued upon said application in the name of said Bernice Hagaman as owner, with loss, if any, payable to Jake Stoner, mortgagee, as his interest might appear. On the 3d day of March, 1931, a decree foreclosing said mortgage was entered, and on the 4th day of April, 1931, the said property was sold under special execution and purchased by said Jake Stoner for the amount of his mortgage, interest, and costs. On the 11th day of May, 1931, by a supplemental order and decree, O. M. Green was appointed receiver of said mortgaged property. On the 1st day of June, 1931, the house upon said lot was totally destroyed by fire, and on the 10th day of July, 1931, the plaintiff filed this action in the district court of Adams county, Iowa, to recover the full amount of said policy of insurance. On the 26th day of September, 1931, defendant filed its answer. On the 9th day of March, 1932, defendant filed an amendment to its answer, and on the same day the plaintiff filed a reply to said answer and amendment. Trial was had to the court. At the close of plaintiff's evidence, the defendant filed a motion asking that the plaintiff's case be dismissed, which motion was overruled by the court. On the 6th day of April, 1932, the court filed its decree and judgment in favor of the plaintiff for the full amount of the policy. On the 13th day of April, 1932, the defendant filed a motion for new trial which was overruled by the court. Thereafter, the defendant appealed to this court from the decree and final judgment and all rulings adverse to it.
I. The defendant-appellant, as its first ground for a reversal, contends that the trial court erred in refusing to sustain the first ground of its motion to dismiss plaintiff's case. The first ground of appellant's motion to dismiss plaintiff's case was that the property covered by the policy of insurance sued upon was transferred after said policy had been written, without the knowledge or consent of the defendant, contrary to the terms of said policy. The policy of insurance sued upon contained the following provision: “Unless otherwise provided by agreement of this company, this policy shall be void if any change other than by death of the insured, whether by legal proceeding, judgment, voluntary act of the insured or otherwise, take place in the interest, title, possession or use of the subject of insurance, if such change in possession or use makes the risk more hazardous.” Appellant contends that this provision of the policy was violated because, after the issuance of the policy, the premises in question were transferred by said Bernice Hagaman to James Fadden and by said Fadden to J. H. Stoner. It appears from the record that such J. H. Stoner is not the same person as Jake Stoner, the mortgagee who made application for the policy of insurance sued upon herein.
Appellee meets this contention of the appellant with the assertion that at the time the insurance was applied for the defendant's agent was told that Stoner wanted insurance to cover his interest as mortgagee during foreclosure proceedings and period of redemption; that the actual owner was not known to Stoner, but that the records showed the title to be in one Bernice Hagaman; that the defendant's agent was notified of the filing of the conveyances from Bernice Hagaman to Fadden and from Fadden to J. H. Stoner; and that the appellant-company, having written a policy with this knowledge on the part of its agent, cannot avoid its liability by the provision of its policy in regard to a transfer of the title to the property.
[1] It appears without dispute in the record that at the time the insurance was applied for defendant's agent was told by one Fackler, who acted as attorney and agent for Jake Stoner, the mortgagee, that he desired insurance to protect the interest of said mortgagee and was not seeking the insurance for the owner; that, while the title appearsof record in the name of Bernice Hagaman, said Fackler did not know whether there was any such person or not, and that it was hard to tell just who did own the property; and that defendant's agent informed said Fackler that he would have to put in the name of some one as the title holder to get the insurance. It further appears that, pursuant to this conversation with defendant's agent, such agent made an application in the name of Bernice Hagaman as title holder, with loss payable clause to Jake Stoner, for insurance in the amount of $1,800, and that a few days thereafter the policy in question was issued by the defendant-company in the name of Bernice Hagaman as owner, with loss payable to Jake Stoner as his interest may appear. It must be borne in mind that this suit is brought by the plaintiff upon the policy which was issued. Plaintiff attached a copy of this policy to his petition and introduced the policy in evidence. This policy contains the provision in regard to change of interest or title referred to above. It was accepted and retained by Jake Stoner, and no objection was made by him, or by the plaintiff as his assignee, to any of its provisions. This is an action at law upon the policy itself, to enforce payment of the amount claimed due thereunder, and is not an action in equity to reform such policy. As this case is now presented to us, this court is powerless to modify or ignore any of the provisions of the contract contained in the policy, and the provision in regard to change of interest or title must be given full force along with all its other provisions.
[2][3] This brings us to a consideration of appellee's contention that the appellant was notified through its agent of the changes which took place in the title to the property. It appears without dispute in the evidence that the agent to whom it is claimed this notice was given is soliciting agent of the defendant-company, and that there is nothing to show that he had any power or authority other than such as is ordinarily exercised by soliciting agents. It seems to be the established law of this state that knowledge which is brought to the soliciting agent of an insurance company in connection with the application for and issuance of insurance will be imputed to the company. 26 C. J. 296; Gurnett v. Atlas Mutual Ins. Co., 124 Iowa, 547, 100 N. W. 542;Fitchner v. Fidelity Mutual Fire Ins. Co., 103 Iowa, 276, 72 N. W. 530;Erb v. Fidelity Ins. Co., 99 Iowa, 727, 69 N. W. 261. It seems equally well established that knowledge on the part of a soliciting agent as to things which occur after the issuance of a policy will not be binding on the insurance company, and that no waiver or estoppel can be established against an insurance company because of notice to or knowledge of its agent in regard to violations of provisions of a policy...
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