Hemmings v. Home Mutual Ins. Association of Iowa

• Decision Date: 12 May 1925
• Docket Number: 35894
• Citation: 203 N.W. 818,199 Iowa 1311
• Parties: LEN HEMMINGS, Appellee, v. HOME MUTUAL INSURANCE ASSOCIATION OF IOWA, Appellant
• Court: Iowa Supreme Court

203 N.W. 818

199 Iowa 1311

LEN HEMMINGS, Appellee, v. HOME MUTUAL INSURANCE ASSOCIATION OF IOWA, Appellant

No. 35894

Supreme Court of Iowa, Des Moines

May 12, 1925

Appeal from Allamakee District Court.--W. J. SPRINGER, Judge.

ACTION upon a contract of fire insurance. From a judgment upon a verdict in favor of plaintiff, the defendant appeals.

Affirmed.

Ray A Emmert and Dayton & Eaton, for appellant.

William S. Hart and J. W. Dempsey, for appellee.

VERMILION J. FAVILLE, C. J., and STEVENS and DE GRAFF, JJ., concur.

OPINION

VERMILION, J.

The claim of the plaintiff and appellee is to recover upon a policy of insurance issued by the appellant company, for the loss by fire of 12 head of cattle and 18 tons of hay.

The issuance of the policy and the fact of the loss were admitted. The defense is based upon the claim that, at the time the policy was issued, the property insured was mortgaged, which fact was concealed by the appellee, and that, after the issuance of the policy, the property was further incumbered by a mortgage, without the consent of the company, all in violation of the terms of the policy. These defenses are met by a plea of waiver.

The material facts are not in dispute. The court did not submit to the jury the pleaded defenses or the question of waiver, and submitted only the questions of the amount and value of the property destroyed.

I. Error is assigned on an order, made on application of the appellee before the trial, requiring appellant to produce "all original papers, files, and records of defendant, and in defendant's office, constituting a part or having directly to do with the insurance contract," and "all correspondence at all times since July 1, 1920 [a date prior to the issuance of the policy], between plaintiff and defendant and between defendant and other persons or parties whomsoever, except its own attorneys, with reference to plaintiff's insurance contract and plaintiff's fire loss, and the claim or proofs of loss made by plaintiff, and with reference to all transactions of all kinds between plaintiff and defendant subsequent to date of fire in question."

It must be conceded, we think, that the order was much too broad and general in its scope, and that the petition upon which it was granted was lacking in respect to the statement of what appellee expected to prove by the documents called for. Sections 4654 and 4655, Code of 1897 (Sections 11316 and 11317, Code of 1924); Grand Lodge A. O. U. W. v. Webster County Dist. Court, 150 Iowa 398, 130 N.W. 117; Davis v. District Court, 195 Iowa 688, 192 N.W. 852. Appellant was required to and did produce documents not material to any issue presented, as well as others, such as the original application, the proof of loss, and certain letters and copies of letters written by the parties, that were material and competent, and which were put in evidence. But the error, as the matter is now presented, was without prejudice. No complaint is made that any of the documents so produced were improperly introduced in evidence, or that any improper use was made of them. In so far as the order was erroneous, or beyond the authority of the court, in requiring the production of documents appellant should not have been required to produce, it had no effect to bring about the result reached in the case. Furthermore, such documents as were improperly required were produced, and, we assume, inspected by the appellee. The mischief has been done, and a reversal on that account and a new trial would not undo it. In the absence of a showing of some improper use of the documents erroneously ordered to be produced, and one which could be corrected on a retrial, a reversal would be of no avail to protect any rights of the appellant's that may have been violated by the order.

II. Error is assigned on the refusal of the court to permit the agent who took the application for the policy to testify to what was said by the insured at that time with respect to incumbrances on the property. It appears without dispute that a true copy of the application for the insurance was not attached to, or indorsed on, the policy. From the application, as incorporated in the policy, it appeared that the question or requirement of the printed application, "State incumbrance, if any," was not answered by the insured; while in the original application, produced by the appellant in response to the rule to produce papers, the word "none" appeared as an answer to the question. Section 1741, Code of 1897 (Sections 8974 and 8975, Code of 1924), after requiring a true copy of the application, where made a part of the policy, to be attached or indorsed on the policy, provides that, if any company neglects to comply therewith, it shall forever be precluded from pleading, alleging, or proving any such application or representations or the falsity thereof. The result of the failure of the company to set out a true copy of the application in the policy was to deprive it of any right to prove the oral or written representations made in the application for the insurance. Kirkpatrick v. London Guar. & Acc. Co., 139 Iowa 370, 115 N.W. 1107. It was not error to refuse to receive the testimony of the agent who procured the application as to what representations the assured then made as to incumbrances on the property.

Appellant relies upon MacKinnon & Co. v. Mutual F. Ins. Co., 89 Iowa 170, 56 N.W. 423, and Kirkpatrick v. London Guar. & Acc. Co., supra, to support its contention that, notwithstanding the failure to attach a true copy of the application to the policy, it was entitled to show a breach of the conditions of the policy itself, or that the insurance was issued in violation of its by-laws, by which appellee agreed to be bound.

Even if the fact be passed that neither policy nor by-laws appear to contain any prohibition against the insuring of incumbered property, save a provision that any untrue answers in the application, with a view to creating an erroneous impression as to the condition and value of the property to be insured, shall render the policy void, the defense that the property was incumbered at the time the policy was issued was, as will be seen, waived by the adjustment of the loss, with knowledge of the facts.

III. It is said that the court erred in excluding evidence of a mortgage upon the insured property executed after the policy was issued.

The provisions of the policy with respect to the insurance on live stock were that the company insured the applicant:

"On 5 head of horses or mules on premises or in line of duty, not to exceed $ 150 each, $ 500. One half of the number kept must be insured. * * * On 25 head of cattle on premises or in pasture, not to exceed $ 100 each, $ 2,500. One half of the number kept must be insured."

The animals destroyed in the fire were milk cows. The property described in the mortgage in question was five horses, and five calves six months old. It is apparent that none of the animals which were destroyed by the fire, and for which claim is made, were covered by this mortgage. It is the contention of appellant, however, that the contract of insurance was indivisible, and that the placing of an incumbrance on any of the insured cattle, without the consent of the insurer, rendered the entire contract void, or void as to all cattle insured. This question, for reasons which will presently appear, we do not find it necessary to determine.

Complaint is also made of the refusal of the court to admit in evidence the whole of a letter written by the secretary of the company to appellee's attorneys.

It is undisputed that, after the loss, the appellant sent an adjuster, who was one of its directors, to investigate the...