Lee v. Farmers' Mut. Hail Ins. Ass'n of Iowa

• Decision Date: 15 March 1932
• Docket Number: No. 41162.,41162.
• Citation: 241 N.W. 403,214 Iowa 932
• Parties: LEE v. FARMERS' MUT. HAIL INS. ASS'N OF IOWA.
• Court: Iowa Supreme Court

214 Iowa 932

241 N.W. 403

LEE

v.FARMERS' MUT. HAIL INS. ASS'N OF IOWA.

No. 41162.

Supreme Court of Iowa.

March 15, 1932.

Appeal from District Court, Story County; H. E. Fry, Judge.

Action upon a hail insurance policy to recover loss occasioned by hail to growing crops. Verdict and judgment for the plaintiff, and the defendant appeals.

Affirmed.

ALBERT and GRIMM, JJ., dissenting.Hal W. Byers, of Des Moines, and Lee, Steinberg & Walsh, of Ames, for appellant.

E. S. Tesdell, of Des Moines, and Addison & Smedal, of Nevada, Iowa, for appellee.

STEVENS, J.

The loss for which recovery is sought occurred in July, 1928, the result of two hail storms. The crops covered by the policy consisted of 80 acres of oats and 120 acres of corn. The case comes to us for review upon numerous propositions involving certain paragraphs of the court's charge to the jury and numerous rulings of the court during the progress of the trial. Propositions I, II, and VI do not in form or substance present error.

[1] I. No proofs of loss were filed by appellee. He relies upon waiver. It appears from the testimony that appellant's adjusters visited the premises of appellee, examined the crops very shortly after the damages were inflicted, denied liability, and made offers of settlement. This was sufficient to constitute waiver, and this issue was properly submitted to the jury. Sinclair & Co. v. Surety Co., 132 Iowa, 549, 107 N. W. 184;Cottrell v. Insurance Co., 145 Iowa, 651, 124 N. W. 612;Stephenson v. Bankers' Life Ass'n, 108 Iowa, 637, 79 N. W. 459;Elliott v. Hail Ass'n, 160 Iowa, 105, 140 N. W. 431;Teasdale v. Insurance Co., 163 Iowa, 596, 145 N. W. 284, Ann. Cas. 1916A, 591;Henderson v. Insurance Co., 143 Iowa, 572, 121 N. W. 714;Condon v. Des Moines Mut. Hail Ass'n, 120 Iowa, 80, 94 N. W. 477.

[2] II. The further point is made by appellant that the record contains no plea of waiver. It must be confessed that the allegations of the petition relied upon to excuse the furnishing of proofs of loss do not comply strictly with the essentials of a plea of waiver. The ultimate facts relied upon to constitute waiver are quite fully set out in the petition, but the pleader failed to state the conclusion that, because of the acts and conduct of appellant thus alleged, the furnishing of proofs of loss was waived. The pleading was not assailed by appellant by a motion to strike, and the testimony relied upon by appellee to establish waiver was admitted without objection. The same ultimate facts were plead by way of reply. The court interpreted the allegations of the petition as constituting a plea of waiver. The exceptions to the instructionssubmitting this issue relate rather to the alleged absence of evidence to sustain the plea than to the failure of the petition to plead same. The exceptions to the instructions do challenge the sufficiency of the evidence to show the authority of the adjusters to waive proofs of loss. No specific exceptions to the instruction are, however, pointed out by appellant. Furthermore, there is no reference in the propositions relied upon for reversal to either of the two paragraphs of the court's charge upon the subject of waiver. The pleading was understood by all parties, and testimony was introduced by appellant upon the point.

[3] III. Claim is made that the action was prematurely brought. Section 8986 of the Code of 1931 provides that no action upon a policy of insurance on personal property shall be commenced within forty days after notice and proofs of loss have been given. This action was commenced more than eleven months after the loss. Appellant having waived proofs of loss, the claim that the action was prematurely brought is without merit.

[4] IV. Error of the court in the admission of testimony of certain propositions of settlement claimed to have been made by the adjusters is also urged as one of the grounds for reversal. This testimony was admitted without objection, and therefore the assignment is also without merit. The same is true as to the next proposition assigned by appellant. The complaint there made is that the court erred in admitting testimony of the market value of the oat crop. No objection was made to the admission of this testimony.

V. Propositions IX, X, XI, and XII are so obviously without merit that they require only passing notice.

[5] At the conclusion of plaintiff's testimony, the defendant moved for a directed verdict. The court, upon showing, permitted the case to be reopened and further testimony introduced by appellee. This was permitted the second time. The matter rested largely in the discretion of the court, and there is nothing in the record from which the possibility of prejudice may be inferred.

VI. A plat of appellee's premises, known in the record as Exhibit B was admitted in evidence over the objection of appellant. Lines drawn on the plat indicate the several tracts upon which corn and oats were growing at the time the hail storms occurred. There is also on the plat a notation of the estimated number of bushels lost on each separately designated tract. The objections urged to the admissibility of the plat were that it was incompetent, immaterial, and irrelevant, and a self-serving declaration. The court, in ruling, said: “I will overrule and admit this evidence but I will instruct the jury that they must use it for the purpose of aiding them in a perfect understanding of the testimony he has given and...