Jacobs v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 07 October 1892 |
| Citation | 53 N.W. 101,86 Iowa 145 |
| Parties | JOHN JACOBS, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Louisa District Court.--HON. DAVID RYAN, Judge.
ACTION on a policy of insurance. There was a judgment for the defendant, and the plaintiff appeals. Reversed.
REVERSED.
Newman & Blake and L. A. Riley, for appellant.
Gray & Tucker and D. N. Sprague, for appellee.
The policy in suit issued from the defendant company to the plaintiff on the fourth day of May, 1887, and was against loss by fire on a certain frame building. The building was destroyed by fire on the third day of October, 1887, and this action is to recover for the loss. Several questions are presented by the record.
I. The policy described the building as being situated on the northwest quarter of section twenty-five, township seventy-four, range five. The policy was written or filled out by J. E. Utt, who was the soliciting agent for the defendant company, and who solicited the insurance in question. By a mutual mistake, the township was numbered in the policy "seventy-four," instead of "seventy-five," as it should have been. On the fourth day of September, 1888, the plaintiff brought an action on the policy with the erroneous description it contained. Issue was taken on the averments to the petition. The cause came on for trial January 18, 1889. Later an amendment was made to the petition, and on the trial the erroneous description was discovered. The plaintiff then by leave of court, filed a substituted petition in equity asking a re-formation of the application and policy to conform to the intention of the parties. On the thirty-first day of March, a decree was entered re-forming the contract as prayed in the petition. On the twenty-fifth day of April, 1889, the original notice in this suit was delivered for service, and served on the eighteenth day of September thereafter. The petition in this case was filed on the twenty-ninth day of April, 1889, as an equitable action, based upon the policy of insurance as re-formed, and recites as reasons for the delay in prosecuting the action the facts as to the mistake in the policy, and the proceeding to re-form it. As has been said, the loss occurred on the third day of October, 1887. The first suit on the policy, resulting in an action for its re-formation, was commenced in September, 1888, and determined on the thirty-first day of March, 1889.
It is said that this action is barred, because of a provision of the policy that no suit or action thereon shall be maintained against the company, unless commenced within one year from the date of the loss. There was an action on the policy commenced within the year. In consequence of a mistake in the policy, discovered during the pendency of that suit, the character of the action was changed, and a re-formation of the contract was sought and obtained. The following is section 2537 of the Code: "If, after the commencement of an action, the plaintiff fail therein for any cause, except negligence in its prosecution, and a new suit be brought within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first." The discovery of the mistake and the change in the character of the action caused a failure to obtain judgment in the suit on the policy. We think the provision of the policy and the section of the statute must be construed together. Thus construed, there is little room for doubt that, unless there was negligence in the prosecution of the first suit, this one is not barred.
It is claimed by the appellee that there was no necessity for a change of the first action from one at law to one in equity; that full relief could be obtained in the law action, and a reference is made to the case of Eggleston v. The Council Bluffs Insurance Co., 65 Iowa 308, 21 N.W. 652. The cases are quite different in the essential particular to be considered when viewed carefully. It will be noticed in this case, that there is an absolute misdescription of the insured property, and that to recover a state of facts must be shown absolutely at variance with the statements of the policy--a different tract of land. In the Eggleston case, the description, as far as it goes, is accurate. It is of one of two lots in the town of Floris; one being in the original plat, and the other in an addition to the town. It is there held that the original plat and the addition thereto are parts of the town; that the description is merely uncertain, which uncertainty or ambiguity is latent, and can be explained by parol in an ordinary action. It was not a case of re-forming or changing a contract, as was necessary in order to recover on the policy in suit. See same case at page 311, and authorities cited. Clearly, then, it cannot be said that there was negligence in the prosecution of the first suit. The plaintiff failed therein because of the mistake in the policy. If it should be said that in the law action the issue of the mistake could have been presented and determined, which we do not decide, we cannot say that it was negligence for the plaintiff to select the equitable method of procedure, instead of determining it under an issue in a law action. We think, under the facts, that this case should be considered as a continuation of the former suit, and that it is not barred.
We are referred to some cases in which no previous suit had been commenced, and facts were pleaded in excuse for a failure to commence within the limitation period, wherein the court held that the statute does not extend the time for the purpose of bringing into existence the facts without which a suit cannot be maintained. The cases cited are different from this, as one of them will illustrate,--District Township of Spencer v. District Township of Riverton, 62 Iowa 30, 17 N.W. 105. It was an action to recover money from the defendant district. A demand for payment was a condition precedent to a recovery. It was a condition precedent to the right of...
To continue reading
Request your trial