Key v. Des Moines Ins. Co.

• Decision Date: 06 February 1889
• Citation: 41 N.W. 614,77 Iowa 174
• Parties: KEY v. DES MOINES INS. CO.
• Court: Iowa Supreme Court

77 Iowa 174

41 N.W. 614

KEY

v.DES MOINES INS. CO.

Supreme Court of Iowa.

Feb. 6, 1889.

Appeal from district court, Taylor county; R. C. HENRY, Judge.

This is an action on a policy of insurance, to recover for loss sustained by reason of a high wind. The cause was tried to a jury, and a verdict and judgment rendered in favor of plaintiff. The defendant appeals.Cole, McVey & Clark, for appellant.

Crum & Haddock, for appellee.

ROBINSON, J.

The policy of insurance upon which this action was brought in terms insured plaintiff against loss or damage by high winds, cyclones, or tornadoes, on his dwelling-house and contents, to the amount of $300, for the term of five years, commencing on the 2d day of May, 1883. On the 14th day of April, 1886, the property aforesaid was destroyed by a high wind. A few days after the loss it was adjusted by an agent of defendant at $250. Plaintiff demands judgment for that amount, with interest, and recovered it in the court below.

1. The policy was issued on the application of plaintiff, taken by a soliciting agent of defendant, and prepared by him. The application stated that the plaintiff was the sole and undisputed owner of the property on which insurance was desired, and that it was not incumbered, and warranted such statements to be true. The policy contained a provision making the application a part of the policy, and a warranty on the part of plaintiff, and making the policy void if there was any incumbrance existing upon any of the property insured at the date of the policy, not made known in the application. Defendant alleges that after the adjustment of the loss it discovered that the statements of the application in regard to title and incumbrance were untrue, and that the written proof of loss signed by plaintiff, and delivered to defendant, contained the same false statements; and that by reason of said false statements, and the terms of the policy, it is released from all liability on account of the loss. It was admitted by both parties on the trial that plaintiff at the time the application was made resided on the land in question, and in the house destroyed; that he held the land by title-bond, and that no part of the purchase price of said land had been paid; that some interest had been paid; and that the improvements on the land and the interest paid represented all the interest of the plaintiff in the premises. There is conflict in the testimony, as to what was said at the time the application was proposed, but the plaintiff testified, and the jury were authorized to find, that the terms on which plaintiff held the land, the amount of the purchase price, and time of payment were fully explained to the agent; that the agent then said “that did not tell in the policy,” but that in case the payment became due, and plaintiff obtained a loan on the place, he would have to send to the company for permission to do so. The facts seem to have been known to both plaintiff and the agent, but they erred in supposing that their effect was to make plaintiff the sole and undisputed owner of the land, and that the deferred payment did not constitute an incumbrance on it. It is claimed by appellant that the application was a fraud upon it, to which plaintiff was a party, and that by reason of such fact it is not estopped from relying upon the false statements and breach of warranty as a defense. There is no ground for believing that any wrong was intended by either the plaintiff or the agent. The latter was fully informed as to the facts, and his knowledge was the knowledge of his principal. The agent stated that the facts as disclosed to him made plaintiff the sole owner of the property, and that the unpaid portion of the purchase price was not an incumbrance thereon, and he prepared the application in accordance with his opinion. When plaintiff signed the application, and when he prepared his...