Keck v. Hotel Owners' Mut. Fire Ins. Co.

• Decision Date: 11 October 1893
• Citation: 56 N.W. 438,89 Iowa 200
• Parties: KECK v. HOTEL OWNERS' MUT. FIRE INS. CO. ET AL.
• Court: Iowa Supreme Court

89 Iowa 200

56 N.W. 438

KECK

v.HOTEL OWNERS' MUT. FIRE INS. CO. ET AL.

Supreme Court of Iowa.

Oct. 11, 1893.

Appeal from district court, Union county; W. H. Tedford, Judge.

Action on a policy of fire insurance to recover an amount alleged to be due on account of the destruction of the property insured by fire. There was a trial by the court without the intervention of a jury, and a judgment in favor of defendant the Anchor Fire Insurance Company for costs. The plaintiff appeals.T. M. Stuart, for appellant.

Sullivan & Sullivan, for appellees.

ROBINSON, C. J.

In December, 1889, the Hotel Owners' Mutual Fire Insurance Company of Creston issued to plaintiff the policy in suit. It purported to insure her against loss or damages by fire and lightning to the amount of $2,500 on certain hotel property in the town of Kearney, in the state of Nebraska. Other insurance was permitted and carried. In January, 1890, the name of the company was changed to Anchor Mutual Fire Insurance Company, and it is made defendant under both the old and the new names. On the 24th day of March, 1890, while the policy was in force, the property insured was destroyed by fire. Notice of the loss was at once given to defendant, and proof of loss was duly made, showing that the value of the insured property destroyed was $27,250, and that defendant's share of the loss was $2,477.27. On the 7th day of April, 1890, defendant acknowledged receipt of the proof of loss, and stated that it was not disposed to dispute its liability under the policy. It also said: “We regret, being a new company, and an assessment company, that we are unable to accept your offer of a discount for the immediate payment in advance of the sixty days' allowance of time. We will endeavor to pay your policy at the expiration of sixty days.” On the 14th day of June plaintiff called the attention of defendant to the fact that the loss had not been paid. Two days later defendant wrote to plaintiff as follows: “Madam: Your favor of the 14th inst. received. Would say, in reply thereto, we are prepared to pay you the amount due you from this company by loss under its policy No. 180. Being a mutual company, we regret that at the time of your loss our association had not progressed sufficiently far in its organization, or issued such a number of policies, that receipts from premium collections thereon would enable it to pay your loss in full. We are now ready to remit to you, as per our plan of organization, the amount due you by loss under policy No. 180.” In answer, on the 18th day of June, plaintiff wrote as follows: “Dear Sir: Yours of the 16th to hand, in which you say, ‘Would say, in reply thereto, we are prepared to pay you the amount due you from this company by loss under its policy No. 180,’ and, further, that you are ready to remit. In answer thereto I beg to say that we are still patiently awaiting such payment and remittance, and hope you will do so at once.” On the 20th day of June defendant sent to the Kearney Savings Bank at Kearney a draft for $1,671.50, with a letter in terms as follows: “Gentlemen: Inclosed we hand you draft No. 62,565 on First National Bank, Chicago, $1,671.50, payable to Samantha Keck. We also hand you receipt to be signed by Samantha Keck before draft is turned over to her. Please return receipt duly signed by Samantha Keck to us, and oblige.” The receipt referred to in the letter was as follows: “Total Loss. Creston, Iowa, June 20th, 1890. Received of the Anchor Mutual Fire Insurance Company, formerly the Hotel Owners' Insurance Company, through Geo. J. Delmege, adjuster of said company, the sum of sixteen hundred and seventy-one and 50-100 dollars, ($1,671.50,) being in full payment and compromise settlement of all claims and demands for loss or damage by fire which occurred on the 24th day of March, 1890, to the property insured under policy No. 180, issued at the home office agency of said company; and in consideration of said payment the said company is hereby discharged forever from all further claim by reason of said fire, loss, and damage, and the policy is hereby surrendered and canceled. Net am't paid, $1,671.50.” On the same day defendant sent to plaintiff a letter as follows: “Madam: We have this day forwarded to Kearney Savings Bank our draft for payment of loss under our policy No. 180, held by you. As you know, our company is not fully organized, and under the terms of our articles of incorporation you are entitled to the amount of an assessment on premium notes held by the company at the time of the loss. Please call at the bank, sign receipt, and take up the draft.” On the next day plaintiff answered that letter, objecting to taking less from defendant than its full share of the loss, denying that there had been any compromise as indicated in the receipt, insisting, in effect, upon payment in full, and asking for the reason of defendant for tendering less than that amount. The closing paragraph of the letter is as follows: “We have not signed the receipt, nor accepted the draft sent, for the reasons above; nor shall we, until full explanation by you as above requested, and to our satisfaction.” In answer to that letter, the defendant, on the 23d day of June, wrote as follows: “Your favor of the 21st inst., in reference to the amount of check sent you in payment of loss under our policy No. 180, is received. As you understand, this company is a mutual company, and as yet is only in process of organization. The amount it can pay in event of loss depends upon the amount of premiums it can collect from its policy holders. We had some heavy losses at other points about the time the Midway Hotel was burned, and we assure you we have made every effort to collect premiums on policies issued to meet these losses. In Nebraska we have been unfortunate in our collections, and, of course, if the parties do not pay their premiums when due, we have no means of forcing them to do so. We beg leave to assure you that in arranging for the payment of loss under policy No. 180 we have...