Hopkins v. Phœnix Ins. Co.

• Decision Date: 08 October 1889
• Citation: 78 Iowa 344,43 N.W. 197
• Parties: HOPKINS ET AL. v. PHŒNIX INS. CO
• Court: Iowa Supreme Court

78 Iowa 344

43 N.W. 197

HOPKINS ET AL.

v.PHŒNIX INS. CO

Supreme Court of Iowa.

Oct. 8, 1889.

Appeal from district court, Woodbury county; GEORGE W. WAKEFIELD, Judge.

Action upon a policy of insurance. A judgment was rendered for defendant upon a trial by the court without a jury. Plaintiffs appeal.John H. Weaver, for appellants.

C. L. Wright, for appellee.

BECK, J.

1. The case was first tried to a jury, and a verdict had for plaintiffs, which, on motion, was set aside, and a new trial had to the court without a jury. No question arises upon this appeal involving any other ruling of the district court, except the judgment for defendant rendered upon the evidence, which is alleged to be erroneous, in that it is without the support of the evidence; and but a single question of fact is in controversy, namely, whether the policy before the loss occurred had been canceled. The issuing of the policy, and the loss of the property insured by fire, are not disputed. Defendant pleaded, and maintained at the trial, that the policy had been canceled by defendant under a provision therein contained to the effect that the policy “may be terminated at any time, at the option of the company, on giving written or verbal notice to that effect, and refunding or tendering a ratable proportion of the premium for the unexpired term of the policy.” The policy was upon the furniture, fixtures, and stage properties of a theater, which, as is shown by evidence, belonged to the class usually designated “varieties.” The local agents of the defendant were directed to cancel the policy, under the provision of the policy above quoted. The agents of the defendant testify that they notified the assured of this direction, and that the policy was canceled, and no insurance was held by plaintiffs under it. The assured recognized the fact that they had no insurance under the policy, and entered into negotiations to secure insurance in the place of the policy canceled. The policy was not given up, but was brought by the assured to their place of business to be surrendered to defendant, but, as its agents did not call for it, the policy was not delivered to them. The assured recognized the fact that the policy was canceled, and so regarded it. The assured were not paid the ratable proportion of the premium for the unexpired time of the policy, and no tender thereof was made, but they never demanded it as a condition to the cancellation of the policy, and made no claim...