Kimball Bros. Co. v. Palatine Ins. Co.

• Decision Date: 11 December 1923
• Docket Number: 35040
• Citation: 195 N.W. 987,197 Iowa 598
• Parties: KIMBALL BROTHERS COMPANY, Appellant, v. PALATINE INSURANCE COMPANY, Appellee
• Court: Iowa Supreme Court

195 N.W. 987

197 Iowa 598

KIMBALL BROTHERS COMPANY, Appellant, v. PALATINE INSURANCE COMPANY, Appellee

No. 35040

Supreme Court of Iowa, Des Moines

December 11, 1923

REHEARING DENIED MARCH 14, 1924.

Appeal from Pattawattamie District Court.--E. B. WOODRUFF, Judge.

ACTION at law, to recover upon an insurance policy. There was a directed verdict for the plaintiff for a part of the amount claimed by plaintiff, which defendant admitted to be due, and for which tender was made. Plaintiff appeals.

Affirmed.

Kimball Peterson, Smith & Peterson, for appellant.

Tinley Mitchell, Ross & Mitchell, for appellee.

PRESTON, C. J. EVANS, ARTHUR, and FAVILLE, JJ., concur.

OPINION

PRESTON, C. J.

The errors relied upon for reversal are, stated in a general way for the present, that the court erred in not transferring the cause to the equity calendar; erred in the construction of the contract; erred in excluding offered evidence, and in directing a verdict for plaintiff. There is no dispute as to the pro-rata amount due from defendant to plaintiff, if the contention of appellant is not sustained.

1. The case was being tried to a jury. After the trial court had excluded much of plaintiff's offered testimony, and when the trial was practically concluded, plaintiff dictated into the record a motion to transfer to equity, as follows: "Counsel for plaintiff moves to transfer this case to equity, and that the plaintiff be allowed to reform the policy in accordance with the intention of the parties as to what property the policies were to cover, in accordance with the premiums paid upon the policies, in accordance with the agreement."

The motion was overruled, and we think properly so. The action was brought by plaintiff at law. No equitable issues were presented by the pleadings, and no reformation was therein asked. We know of no rule or law by which a law action should be transferred to equity for trial, under the circumstances here shown.

2. The controlling question in the case is in regard to the construction of the policy of insurance. A determination of that question governs largely the question as to the admissibility of the offered testimony. The policy sued on herein was issued on June 25, 1919, and expired on June 25, 1920. During the life of the policy, the buildings were partially destroyed by fire. The property consisted of different buildings. There were eight concurring policies besides defendant's totaling $ 12,500. In addition to this, there was a policy of $ 500, which appellee contends was specific insurance on one building. The amount of the policy in suit was $ 1,000. Without considering the warehouse which was burned, and upon which there was a $ 500 policy, there was, at the time of the fire, the main factory building, a two-story and basement brick. This building was owned by plaintiff at the time all the insurance policies were taken out, and it had been so owned for many years prior thereto. There were four additions to the main building, as follows: The office building on the front, a new machine room on the north side, a blacksmith shop and foundry on the west. Before the fire, appellant had secured insurance on the buildings referred to in the amount before stated, $ 12,500, and $ 500 specific insurance on the warehouse. The description of the property was the same in all the $ 12,500 policies. In addition to the buildings just described, appellant owned the warehouse, 10 or 12 feet from the main building. The warehouse was about 14 feet wide by 80 feet long. A part of it was one story and basement, and a part two stories and basement. It was a frame building. There was a platform between the two buildings, and an elevator that could serve both. At the time of the fire, appellant had an additional policy of insurance, before referred to, for $ 500, covering this warehouse and contents,--$ 200 on frame lumber warehouse and additions adjoining thereto and made a part of it, and $ 300 on stock of lumber while contained therein. The description in that policy covers the warehouse and stock of lumber that was burned and involved herein.

The question is whether or not the policy issued by the defendant covers the loss incurred by fire in the frame warehouse. The portions of the policy which seem to be material to this controversy, are: $ 2,150 on the two-story and basement brick building known as the main building, and additions adjoining and communicating on which there is no specific insurance, including foundation walls, platforms, etc $ 4,350 on fixed and movable machines, implements, appliances, etc., all while contained in or on above described building; $ 2,200 on stock, manufactured, unmanufactured, and in process of manufacture, consisting of elevators, scales, etc., all while contained in or on the above described buildings, or on any ground adjacent thereto, or in cars on track within 100 feet of said building and additions. Other amounts named are on the contents of the foundry and blacksmith shop, on which there is no specific insurance. Defendant's $ 1,000 policy contracts to pay the pro-rata share of the loss agreed on in the items above listed,--that is, appellee...