Hart v. Farmers' Mut. Fire & Lightning Ins. Ass'n of Winneshiek County

• Decision Date: 24 September 1929
• Docket Number: 39110
• Citation: 226 N.W. 777,208 Iowa 1020
• Parties: WILLIAM S. HART, Appellee, v. FARMERS MUTUAL FIRE & LIGHTNING INSURANCE ASSOCIATION OF WINNESHIEK COUNTY, Appellant
• Court: Iowa Supreme Court

226 N.W. 777

208 Iowa 1020

WILLIAM S. HART, Appellee, v. FARMERS MUTUAL FIRE & LIGHTNING INSURANCE ASSOCIATION OF WINNESHIEK COUNTY, Appellant

No. 39110

Supreme Court of Iowa, Des Moines

September 24, 1929

Appeal from Allamakee District Court.--W. L. EICHENDORF, Judge.

Two suits in equity: one to recover upon a mutual fire insurance certificate and to compel the levying of an assessment; the other for an accounting for legal services and for losses upon other insurance certificates. Decree for plaintiff for the amount of the policy, $ 3,000, and for the levying of an assessment; and in the accounting case, decree in favor of plaintiff for $ 950, less offset of $ 133, leaving net recovery $ 817. Defendant appeals.--Both decrees reversed.

Reversed.

Mears Lovejoy, Jensen & Gwynne and H. Haehlen, for appellant.

William S. Hart and A. E. Sheridan, for appellee.

MORLING J. EVANS, DE GRAFF, KINDIG, WAGNER, and GRIMM, JJ., concur.

OPINION

MORLING, J.

On August 22, 1917, defendant issued to plaintiff the certificate of insurance sued upon, by which defendant was insured against loss by fire on a barn for $ 3,000. The barn was totally destroyed by fire March 6, 1925. Defendant, among other defenses, set up nonpayment of two assessments for the years 1924 and 1925, notices of which were dated February 1, 1924, and February 2, 1925. After defendant had so answered, in the suit on the certificate, plaintiff commenced the suit for accounting. Plaintiff's principal contention is that defendant was owing him large sums for legal services; that the amounts owed by him for assessments should be credited upon the amount owed to him; and also that, by arrangement between plaintiff and defendant's secretary, the assessments were not required to be paid, but were to be credited; that, by reason of these matters, he was not in default for nonpayment of assessments. Defendant denies plaintiff's claim for legal services and the alleged agreement, and alleges payment for all services rendered.

By the contract, "any member failing to pay his or her assessment within thirty days after notice thereof by the secretary his or her policy shall stand suspended until all dues to the association are paid."

The levying and notices of the assessments and (unless defendant is indebted to plaintiff as he claims) their nonpayment, are not disputed.

Plaintiff's own uncertainty as to the services performed is demonstrated by his petition in the accounting suit, in which he alleges that he "has no detailed or itemized account of the liabilities of defendant to him, and same are unliquidated, unadjudicated, and unsettled between the parties; and defendant has a complete, itemized record of all insurance contracts * * * and of all premiums assessed thereon * * * and also a complete itemized record of all payments actually made by defendant to plaintiff in payment of losses * * * and for legal services or other services rendered and expenses incurred by plaintiff for and on account of defendant, and a complete showing and exposition as to said insurance contracts and assessments and premiums thereon and payments by defendant to plaintiff either for insurance losses sustained or services rendered and expenses incurred * * * and consents that, upon an itemized showing as to such premiums and assessments, that same may be credited at proper time and in proper manner upon the indebtedness of defendant to him. * * * Plaintiff is entitled to recover from defendant the balance due him from defendant, but is unable to determine same, in the absence of a full, complete, and final accounting between the parties; and defendant refuses to enter into such an accounting, and refuses to furnish the data and information necessary to plaintiff for him to determine the exact amount due him and submit specific demand therefor to defendant. * * * Plaintiff is, at this time, preliminarily and interlocutorily to final trial and submission herein and final accounting between the parties hereto, entitled to a statement of the liabilities and credits of both parties, the record and knowledge of which is in hands of defendant, and without which plaintiff is unable to set out, prove, or establish the liability of defendant to him, or the credit which defendant is entitled to thereon." Plaintiff attaches interrogatories requiring defendant to "give in chronological sequence a list of all insurance policies at any time issued by defendant to plaintiff, * * * giving in each instance date of policy, name of insured, amount of policy, location of property, and a general designation, * * * and state what premiums have been paid in cash upon such policy, and what assessments, designated by percentage or otherwise, have been levied by defendant;" to state what levies have been made; to give in detail each payment for loss sustained; and to "state fully and in detail all payments at any time made by defendant to plaintiff for legal services or services of like nature or expenses connected therewith or incident thereto. Set out each payment separately, giving date and amount thereof, and state for what such payment was made, as disclosed by record and account books of defendant." These interrogatories were answered by setting out a list of some seventeen policies and the levies against them, and stating that the assessments from 1913 to 1923 appear to have been paid, but that defendant is unable to state the details thereof, "further than said records show the acceptance of a note by defendant from plaintiff in the year 1921 in the sum of $ 33.90, and on October 10, 1920, $ 33.90, and that said notes were paid by deducting said amount from payments made by defendant to plaintiff on or about the 15th day of October, A. D. 1923, at which time full settlement was had between plaintiff and defendant, and at which time defendant paid plaintiff for certain legal services * * * in the sum of $ 1,000."

Plaintiff kept no account or memorandum of his alleged services. He says his consultations were entirely with the secretary, and a few times with the president; that he was paid up to 1913; that he received nothing on his services between 1913 and 1919 except $ 35.00, and "submitted no formal statement."

"I do not think I got any pay from 1919 until I got the $ 1,000 in the Regan case, and rendered them no statement during that time. I talked about it with Goodykoontz [defendant's secretary]. We never mentioned any amounts. I never submitted any bill or statement for any specific amount."

In testimony, he claims for several different classes of services, and for some individual cases. His testimony consists almost altogether of generalities. No useful purpose would be accomplished by extensive references to it. We are of the opinion that the evidence shows payment to October 15, 1923, for all services to that date, and fails to show any indebtedness incurred thereafter.

Plaintiff testifies:

"Commencing in 1922 or 1923, continuing to 1925, there was a fire epidemic. * * * of suspicious origin. A great deal of time was taken up with defendant secretary and investigators of state fire marshal's office, and with parties who suffered fires, and other parties. I think there were seven or eight such fires. Spent many different days in consultation with secretary, several days and nights with fire marshal from state marshal's office and owners of property. One day, Goodykoontz came to my place on Sunday, and we spent entire day at my office, with Mr. Devitt. * * * Suspicion was directed largely toward one party that had had litigation with insurance company. I viewed premises after fire, interviewed people who were first at fire. I cannot fix times exactly. Toney had two fires. Think I put in more time on Devitt fire than any other. I was consulted with reference to Ford fire and Heddington fire. Work in connection with barn fires was almost continuous for about three years. Goodykoontz was in my office practically every day, for two or three weeks at a time. * * * Value of services in connection with barn fires was worth more than $ 700."

On cross-examination, he says:

"I couldn't tell how many times he was here. I can't remember the instances, only the Regan controversy and the Devitt loss. There was another loss in the eastern part of the county. I forgot what one it is. * * * There was no controversy between Devitt and the insurance company about his loss."

The secretary testifies:

"I had no conversation whatever with Mr. Hart concerning the fire epidemic of barn burnings, that I know of. I wrote to the fire marshal's department, and he or some deputy came here. I do not recall any consultation between Hart, the insurance marshal, and myself. The marshal usually came to my office. I have gone with him to Hart's office while he was here. He and Hart are good friends. It is possible that I had a conversation with Mr. Hart with reference to the Regan house burning, prior to the time Regan was prosecuted for arson. We tried to get Hart to prosecute Regan, but he said he couldn't take it at that time. Mr. Hart represented us in the suit that Regan brought against us for the loss of his barn."

On the question of payment, the secretary says that, after the Regan "case was over, Hart rendered a bill, and it was paid for. At that time, no mention was made by plaintiff for any other claim of services than the Regan case. * * * Asked Hart for his bill, and he rendered it. I wrote out the check for $ 1,000, and requested that it come back to me, which it did. We held notes against Hart for his premiums on assessments. This was taken out of the $ 1,000 check. He indorsed check to me, and I gave back my personal check for difference. * * * The difference, of $ 200, went to pay the note or notes...