Hagan v. Merchants' & Bankers' Ins. Co.

• Decision Date: 24 October 1890
• Citation: 81 Iowa 321,46 N.W. 1114
• Parties: HAGAN v. MERCHANTS' & BANKERS' INS. CO.
• Court: Iowa Supreme Court

81 Iowa 321

46 N.W. 1114

HAGAN

v.MERCHANTS' & BANKERS' INS. CO.

Supreme Court of Iowa.

Oct. 24, 1890.

Appeal from district court, Henry county; CHARLES D. LEGGETT, Judge.

Action upon a policy of insurance against loss by fire. The petition alleges the issuing of the policy, the loss of the property by fire, the value thereof, and notice and proof of loss within 60 days. The policy and copy of application attached is set out as an exhibit to the petition. In the description, in the application, of the building in which the insured merchandise was contained, the question, “Material of roof?” is answered, “Iron and shingle,” and in the policy it is written, “Iron roof and shingle building.” The policy contains a provision that it shall be void unless consent in writing is indorsed thereon by the company if the assured should then or thereafter procure other contracts of insurance on the property than the $2,500 concurrent insurance granted. The defendant answered denying that the policy set out is the policy issued by it, for that the same has been changed and altered without their knowledge or consent since its delivery; that the words “and shingles,” where they occur in the application and policy, were added therein without the knowledge, consent, or authority of defendant, and after the policy, with a copy of the application attached, had been delivered to the plaintiff. It is alleged in the answer that the plaintiff changed the policy and copy of application, without the knowledge, consent, or authority of the defendant, by inserting the words “and shingles” therein. The answer denies the loss and proof of loss, and alleges that plaintiff, in violation of the terms of the policy, had procured concurrent insurance in excess of the $2,500, for which permission had been given, and that defendant had never indorsed its consent on said policy, or in any way consented to his having procured such additional sums of other and concurrent insurance. The defendant, by way of set-off, asks to be allowed upon the plaintiff's note for $113, given to secure the premiums on said insurance, 90 per cent. thereof. To this the plaintiff answered admitting the execution of the note, and denying that there were any assessments due and unpaid on the same at the time of the destruction of the property, and denying that there is anything due on the note. The plaintiff filed a reply to the defendant's answer denying all allegations charging on him any alterations of the policy, and alleging “that if any change was made in said policy or application as indorsed thereon, which plaintiff does not admit, same was changed before such policy and application came into plaintiff's hands or was delivered to plaintiff, and plaintiff is not chargeable therewith; but he denies any such change or alteration was made as charged in answer and amendments.” It is alleged in the reply that defendant had full knowledge at the time this insurance was applied for of the amount of insurance plaintiff was taking out, and the companies and amounts in each. It is also alleged in the reply that defendant at no time demanded or required further or other proofs of loss than those sent, but retained the same without objection thereto, wherefore it is claimed that the defendant is now bound thereby, and is estopped from denying that proofs of loss were made. The case was tried to a jury, and verdict and judgment for plaintiff. Defendant appeals.Baker & Haskins, and W. S. Winthrow, for appellant.

Woolson & Babb, for appellee.

GIVEN, J.

1. On the trial, plaintiff offered in evidence the policy and copy of application attached, to which defendant objected, on the grounds that it was apparent on the face of the instruments that they had been changed, wherefore the burden was on plaintiff to account for the change before he could introduce the instruments in evidence, and also upon the grounds that plaintiff confessed the change in his reply, and had not offered evidence tending to avoid it. This objection was overruled. Defendant asked an instruction to the effect that, if the jury found that there was ground for suspicion on the face of the instruments that the policy had been altered as alleged, then the burden was upon the party offering it in evidence to show “when such alleged alteration was performed, by whom, and the intent with which done.” This instruction was refused, and one given that “the burden of establishing that the words were added in one or both of the places alleged after delivery of the policy rests upon the defendant.” The overruling of said objection, the refusal to instruct as asked, and the instruction given, are assigned as error. The books are full of diverse decisions as to whether, on the production of a written instrument, which obviously has been altered, it is incumbent upon the party offering it in evidence to explain its appearance. Some hold that an alteration apparent on the face of the writing raises no presumption either way; some, that it raises a presumption against the writing, and therefore requires some explanation to make it admissible; others hold that it raises such presumption only when the apparent alteration is suspicious; and yet others, that it is presumed, in the absence of explanation, that the alteration had been made before delivery. The authorities are so numerous that we refrain from citing any, but refer to the American and English Encyclopedia of Law, under “Alteration of Instruments,” where many of the authorities sustaining these different views are cited. This question was incidentally noticed, but not passed upon, in Jones v. Ireland, 4 Iowa, 69;Ault v. Fleming, 7 Iowa, 145;Wilson v. Harris, 35 Iowa, 507; and Wing v. Stewart, 68 Iowa, 13, 25 N. W. Rep. 905. These cases were disposed of upon other grounds, and the question before us has never been directly passed upon by this court. The issues involved in this defense are whether the policy was altered as alleged, and, if so, whether after delivery to the plaintiff, and without authority of the defendant. In Jones v. Ireland, supra, it was held to be a question of fact for the jury whether there had been an alteration, as alleged. The instrument was certainly competent evidence as bearing upon this question, and was therefore proper to go to the jury; but the contention is whether the plaintiff was entitled to offer it without explanatory proofs.

2. If the appearance of the instrument or other testimony tended to support the charge of alteration, it was the duty of the court to submit the issue to the jury; but, if the instrument or other proofs did not so tend, then the issue should be withheld, as in any other case where there is no testimony tending to support the allegation. No complaint is made of the action of the court in submitting the issue, and we may assume, therefore, that the appearance of the instrument does tend to support the charge of alteration. The questions as to whether there were alterations, and, if so whether fraudulent, were fairly before the jury, and the instruments were competent evidence upon those issues. Question is made whether it was necessary for the plaintiff to offer the policy in support of his action. We think upon the pleadings it was not. The execution of the paper was not denied only in the sense that it was not the policy issued by the defendant, “for that the same has been changed and altered, without their knowledge or consent, since its delivery.” This is not such a denial of the execution of the instrument as is contemplated in section 2730 of the Code. It is contended that the plaintiff, in his reply, confessed the alteration, and pleaded in avoidance...