O'Leary v. Merchants' & Bankers' Mut. Ins. Co.

• Decision Date: 07 February 1896
• Citation: 100 Iowa 173,66 N.W. 175
• Court: Iowa Supreme Court
• Parties: O'LEARY ET AL. v. MERCHANTS' & BANKERS' MUT. INS. CO.

100 Iowa 173

66 N.W. 175

O'LEARY ET AL.

v.MERCHANTS' & BANKERS' MUT. INS. CO.

Supreme Court of Iowa.

Feb. 7, 1896.

Appeal from district court, Iowa county; S. H. Fairall, Judge.

Action to recover the sum of $500 upon a fire insurance policy. Trial by jury. Verdict and judgments for the plaintiffs. Defendant appeals. Reversed.James A. Howe and Read & Read, for appellant.

Thomas Stapleton and T. S. Kitchen, for appellees.

ROTHROCK, J.

The policy of insurance upon which the action was brought was issued by the defendant to O'Leary & Plank on the 24th day of May, 1888. Afterwards Plank assigned his interest in the policy to O'Leary & Bro. This assignment was assented to by the defendant, by the proper indorsement in writing as required by the policy. The property insured consisted of a stock of farm implements, wagons, buggies, and other merchandise. The property was destroyed by fire in December, 1891. After the fire, O'Leary & Bro. assigned their claim against the defendant to the Staver & Abbott Manufacturing Company, one of the creditors of the insured. These transfers have no particular significance, more than that the action appears to be maintained for the benefit of the last-named company. The policy provided that the contract of insurance should become void if the assured contracted other insurance on the property without consent in writing indorsed on the policy by the company. And it further provides that no agent of the company has any authority to waive, modify, or erase any of the printed conditions of the contract. It appears that O'Leary & Bro. afterwards insured the property in other companies, to the extent of $1,500, without complying with the foregoing provision of the contract. The policy was not sent to the general office of the company for its indorsement consenting to the additional insurance, and no reason is shown in this whole record why the consent of the company was not obtained in the manner provided for in the contract. It is not claimed that the clause in the contract in reference to additional insurance was in any manner concealed, or that the plaintiffs did not know that they contracted that they would not procure additional insurance without obtaining the required indorsement. On the contrary, it would seem, from the fact that the plaintiffs sent in the policy, and procured the consent to the change of ownership by an indorsement in writing, that they were fully advised of the terms of the contract.

The plaintiffs claim that they procured the consent by writing a letter to the company, and that they received a letter in reply, from the secretary, consenting to the...