Lake v. Farmers' Ins. Co.

• Decision Date: 01 February 1900
• Parties: J. D. LAKE v. FARMERS' INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

81 N.W. 710

110 Iowa 473

J. D. LAKE v. FARMERS' INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 1, 1900

Appeal from Harrison District Court.--HON. F. R. GAYNOR, Judge.

ACTION on insurance policy. The defendant appeals from a judgment rendered against it.

Affirmed.

Deacon & Good for appellant.

S. H Cochran for appellee.

LADD J. GRANGER, C. J., not sitting.

OPINION

LADD, J.

One of the policies, issued June 8, 1896, under which the loss occurred December 11th following, covered a building and the merchandise therein, and the other household goods. The loss was entire, except merchandise saved to the agreed value of five hundred dollars. The proofs doubtless would have been more satisfactory, had not the plaintiff's books and papers been destroyed by the fire. They were, under the circumstances, sufficient to sustain the jury's findings of value. The rulings on the admissibility of evidence, except in two instances were so evidently correct that we shall give them no attention. These exceptions were requiring the president of the company to state whether he was a stockholder in the Capital Insurance Company, and whether the father of J. D. Berry was such holder in the defendant. These matters did not have the slightest bearing on the controversy, but could have worked no prejudice. Proofs of loss were not furnished within sixty days, as required by statute, and the question of controlling importance is whether these were waived. The company was promptly informed of the fire, and, as its adjuster was indisposed, employed J. D. Berry to visit the assured and adjust the loss. This appears from the letter of the defendant's president, addressed to Berry, in which, after mentioning the loss, he said: "I enclose papers to you, and will ask, if you can get time to take it in early next week, you may make your arrangements to do so. We have simply acknowledged receipt of the notice of loss, to the agent, F. L. Davis, at Missouri Valley, and the assured, at Loveland. I would suggest that in the settlement you will not need the services of Davis, in my judgment. * * * I think if he was with you he would be a detriment instead of an aid. We send you two covers, and would suggest that you make two proofs. You will observe the building and stock are reinsured in the St. Paul. We, of course, will have to make proof to them. The policy has the usual three-fourths clause, which, of course, would apply to the building, as well as its contents if you make it work. However, I will leave that matter with you." "Take it in," as used in the letter, evidently meant to adjust the loss. This appears from the reference to the settlement, the agent, and the use of the three-fourths clause suggested. Having power to adjust, that to waive formal proofs of loss was necessarily included. Ruthven v. Insurance Co., 102 Iowa 550, 71 N.W. 574; Huesinkveld v. Insurance Co., 106 Iowa 229, 76 N.W. 696.

II. We now direct our attention to the inquiry as to whether the evidence was such as to sustain the finding of the jury that Berry or the president in fact waived the formal proofs, or extended the time in which to make them. He visited the assured but a few days after the fire, and they agreed on the value of the merchandise saved. He ascertained the dimensions, character, cost, and age of the building, and requested to see the plaintiff's books, bills and invoices. Upon being informed that all save two books, which were produced, had been destroyed, he told the assured to procure duplicate bills a year or eighteen months back, and when these were gotten, to notify the company, and he would return and fix the matter up. A few days later the local agent, at plaintiff's instance, advised defendant of the difficulty in obtaining duplicate bills, because of many purchases being made with cash. The president of the company, in response, wrote December 18, 1896, that: "Mr. Berry informs me that he made no figures on the building, and made no effort to adjust that at the present; and I would say before the matter is adjusted on building, accurate figures will be made, to determine the actual value of the building, so there need be no controversy whatever as to the building. As to Mr. Lake being unable to get his duplicate bills, I would say that I think there is a mistake about that. My experience of several years in this line of business has taught me that all reputable houses keep an account of all sales, and to whom sold, and a list of the...