Hopkins v. Hawkeye Ins. Co.

• Decision Date: 06 December 1881
• Parties: HOPKINS v. HAWKEYE INS. CO.
• Court: Iowa Supreme Court

57 Iowa 203

10 N.W. 605

HOPKINS

v.HAWKEYE INS. CO.

Supreme Court of Iowa.

Filed December 6, 1881.

Appeal from Hardin circuit court.

This is an action upon a policy of insurance to recover the value of a dwelling-house and its contents, insured by the defendant for a term of five years from the seventh day of May, 1878, and destroyed by fire on the eighth day of April, 1879. The plaintiff alleges that, as the assured under said policy, he has in all things performed his agreement with the defendant. The answer admits the issuance of the policy and the destruction of the building, but alleges that the entire premium for the issuance of said policy was two promissory notes,--one for the sum of $20, due January 1, 1879, and one for the sum of $10.80, due November 1, 1879; that the note payable January 1, 1879, was overdue and unpaid when the loss occurred, whereby a breach of the plaintiff's contract was committed, and the policy was rendered void. The plaintiff, for reply, admits that he executed two promissory notes of the amounts alleged for the premium on said policy, and that neither of said notes had been paid when the loss occurred. The plaintiff alleges that it was agreed between him and the defendant's agent, at the time the insurance was effected, that the note for $20 should become due on the first day of June, 1879; that the defendant's agent prepared the note, and read it to the plaintiff as payable on the first day of June, 1879; that the plaintiff relied upon the defendant's agent to fill out the note in accordance with the agreement; and that his signature was obtained to said note by the mistake or fraud of the defendant's agent in drawing the note as due January 1, 1879, and reading it to plaintiff as due June 1, 1879. The trial was to a jury, and resulted in a verdict and judgment for the plaintiff for $1,158.27. The defendant appeals.Porter & Moir, for appellant.

Huff & Reed, for appellee.

DAY, J.

1. The policy sued upon contains the following condition: “That no insurance, whether original or continued, shall be binding until the actual payment of the premium, either in cash or note given therefor. When a note or notes has been received, in whole or in part, for the premium named in the policy, or any renewal of the same, and the assured or his assigns fail to pay the same, or any instalment or any part thereof, at the time or times specified in said note or notes, such failure shall immediately terminate all liability of this company under this policy, and the company shall not in any case be liable for any loss or damage that may occur at a time when any such note or notes, or any instalment therein or any part thereof, shall be overdue and unpaid. If such note or notes, or instalment, is voluntarily paid within 60 days after maturity and before suit is brought, then this policy will come in force again at the date of such payment, (provided that the company will not be liable for any loss or damage that may occur while such note or notes were thus overdue and unpaid;) but if said note or notes, or any instalment, are not thus voluntarily paid within 60 days after maturity, then all notes and instalments given for such premium, or any part thereof, shall immediately become due and payable, and bear interest at the rate of 10 per cent. from that date.” The plaintiff paid no cash premium at the time the insurance was effected. The note for $20 is, by its terms, due on the first day of January, 1879. It had not been paid when the loss occurred, April 8, 1879, and was, therefore, by its terms, more than three months overdue.

The plaintiff testified as follows: “Mr. H. H. Clark came to my house and wanted to insure it, and he offered to insure it and take my note for one year. That was on the seventh day of May, 1878, and, after talking some time, I agreed to insure the house with him. He said they always wrote their notes payable on the first day of some month, and he should write the notes payable the first day of June, 1879. A few days before that I was in town and lost my spectacles, and Mr. Clark read the note to me, and he read it due the first day of June and I did not notice it,--didn't think there was any catch to it,--and, after he read the notes payable at Des Moines, I asked him how I should pay them, and he said I shouldn't trouble my head about it; that they would send me a notice before how I should send the money.” Upon cross-examination the witness stated: “I signed the application at home. My wife and son were present when I signed it. My son was 19 years old last December, and he is present as a witness in this case. My wife has never used spectacles until within a year. She could read writing and printing, in April, 1878, without spectacles.” Mrs. O. W. Hopkins, the wife of plaintiff, testified as follows: “Mr. Clark the agent, was to take a note, and the note was written May 7th, payable first day of June, 1879. He so read it. It was to be made payable the first of June, 1879. That was the talk before the note was executed. Neither of us read the note. Mr. Clark read the note. We put confidence in him. He held it in his hand and put in his pocket. He was a friend of ours, and neither of us looked at it. My husband could not read without glasses and he had lost his.”

Herbert Hopkins testified as follows: “I am a son of plaintiff. I was at home May 7, 1878, and remember about Mr. Clark, agent of the Hawkeye Insurance Company, being there. I was there when the notes and application were signed, and heard them read to my father, and heard a conversation between the agent and father as to when the $20 note should mature.” “ Question. What was said between the parties as to when that note was to mature? Answer. The first of June, 1879. Question. How was it read as to the time it matured? Answer. First of June, 1879.” Upon cross-examination the witness testified as follows; “ Question. You could read printing and writing readily at that time? Answer. I certainly could. Question. Did your father ask you to read those notes, or either of them? Answer. No, sir; he did not.”

The defendant asked the court to instruct the jury as follows: “It was the duty of the plaintiff, O. W. Hopkins, to have read the notes and application signed by him on the seventh day of May, 1878, and if he was unable to do so because of having lost his spectacles, then he should have requested his wife or son to have read the same in his hearing; if they were present at the time, and if he failed to...