Maasdam v. Jefferson County Farmers' Mut. Ins. Ass'n
| Decision Date | 31 July 1936 |
| Docket Number | 43445. |
| Citation | 268 N.W. 491,222 Iowa 162 |
| Parties | MAASDAM v. JEFFERSON COUNTY FARMERS' MUT. INS. ASS'N. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jefferson County; Elmer K. Daugherty Judge.
Action against the defendant upon a fire insurance policy. Plaintiff recovered a verdict and judgment in the sum of $8,000. Defendant appeals.
Reversed.
Thoma & Thoma, of Fairfield, for appellant.
Calhoun & Calhoun, of Keosauqua, and Richard C. Leggett, of Fairfield, for appellee.
Plaintiff was a member of and had a fire insurance policy with the defendant, Jefferson County Farmers' Mutual Insurance Association. The insurance covered plaintiff's house and all personal property contained therein belonging to him. The building was destroyed by fire on February 3, 1933. The defendant refused to pay the fire loss, and plaintiff commenced this action.
The defendant contends that plaintiff forfeited his right to benefits upon the ground that he failed to pay all assessments levied against him within 20 days after receiving notice thereof. The defendant claims that two assessments of $28 and $23.20, respectively, were levied against plaintiff at meetings of the officers and directors in March and October, 1932. The record shows that due notice of these assessments were received by plaintiff in May and November, 1932, and that he failed to pay the same within 20 days thereafter, or at any time thereafter.
Appellee contends that no valid assessment was ever levied, and that the assessment notices received by him were, therefore, of no validity.
The defendant's articles of incorporation provide that " the president, vice-president, treasurer and secretary shall constitute the Executive Committee." The articles of incorporation also provide that all assessments are to be made by the executive committee of the association, and plaintiff contends that no such levy was ever made.
Article V, § 5, of the articles, provides that:
The articles of incorporation also provide that: " The members shall pay their assessments within twenty (20) days from date of mailing the call, and the Association shall not be liable for any loss such members may sustain while in default." (Article VIII, § 1).
The lower court held that no valid assessment was ever levied and submitted the case to the jury upon the amount of damages, and a verdict was returned for plaintiff.
Defendant filed a motion for a new trial on the grounds: (1) That the court erred in refusing to admit certain evidence offered by the defendant on the question of damages; and (2) that the lower court erred in holding that no valid assessment was ever made. The motion was overruled and defendant appeals.
Appellant contends that the court erred in sustaining plaintiff's objection to questions put to defendant's witness McWhirter as to the reasonable market value of articles of personal property destroyed by the fire.
Appellee, however, contends that the ruling of the court was correct, because the property destroyed consisted chiefly of household goods, furniture, etc., which had no market value. Such a ruling has support in the following cases: Mote v. Railroad Co., 27 Iowa 22, 1 Am.Rep. 212; McMahon v. City of Dubuque, 107 Iowa 62, 77 N.W. 517, 70 Am.St.Rep. 143; Jeffries v. Snyder, 110 Iowa 359, 81 N.W. 678. Some doubt is cast upon this contention by later rulings, because it is claimed that household goods and furniture are now being sold extensively in secondhand stores, and, therefore, may have a market value. New England Syndicate v. Cutler, 162 Iowa 246, 143 N.W. 1095.
In New England Syndicate v. Cutler, 162 Iowa 246, loc. cit. 250, 143 N.W. 1095, 1096, this court said: " The reasonable market value of personal property is established when other property of the same kind has been the subject of purchase and sale to such an extent that the value or price becomes fixed in that locality or market, and in this connection you are entitled to give the evidence offered and introduced in this case as to the reasonable market value of the goods, wares, and merchandise in question * * * such weight to which you deem it entitled."
We are not called upon to determine this question, however, because of the well-settled rule of law that where objections to evidence offered on a certain theory have been overruled by the court when offered by one party to the litigation, it becomes admissible on the same theory when offered by the opposite party. Under this rule, where allegedly inadmissible evidence is admitted on one side, similar evidence is rendered admissible to contradict the same. First Nat. Bank v. Snyder Bros., 79 Iowa 191, 44 N.W. 356; Ingram v. Wackernagel, 83 Iowa 82, 48 N.W. 998; Canfield Lumber Co. v. Kint Lumber Co., 148 Iowa 207, 127 N.W. 70; Scott v. Wilson, 157 Iowa 31, 137 N.W. 1043; Smith v. Rice, 178 Iowa 673, 160 N.W. 6; Peterson v. McManus, 187 Iowa 522, 172 N.W. 460; Nigut v. Hill, 200 Iowa 748, 205 N.W. 312; Bremhorst v. Coal Co., 202 Iowa 1251, 211 N.W. 898.
The only evidence offered by plaintiff on the value of the household goods and personal property destroyed by fire consisted of the evidence of himself and his daughter. Much of his evidence related to its " reasonable market value," and was admitted over defendant's objection. The record also shows that all of the testimony on value given by his daughter related to the " reasonable market value of the property" destroyed, and was all admitted over defendant's objection thereto as being incompetent.
Defendant's witness McWhirter was an auctioneer of many years' experience; had sold numerous articles of household property and furniture similar to that in question, but when he was asked the reasonable market value of such property in that community by defendant's counsel, based on his knowledge of similar property, the objection thereto was sustained. Whether the ruling was correct or not, it is the well-settled rule of law in this state that the court cannot apply one rule to the admission of evidence in favor of plaintiff, and an opposite rule as to the admission of similar evidence by the defendant.
In Canfield Lumber Co. v. Kint Lumber Co., 148 Iowa 207, loc. cit. 212, 127 N.W. 70, 72, this court said: " Moreover plaintiff, without objection, first introduced testimony as to this parol agreement, and having thus opened the door, he cannot complain of defendant's testimony related to the same matter."
In Scott v. Wilson, 157 Iowa 31, loc. cit. 35, 137 N.W. 1043, 1045, this court said: " It is sufficient to say that the evidence thus objected to was responsive to the oral evidence introduced by the plaintiff, and he was thereby precluded from objecting thereto."
In Smith v. Rice, 178 Iowa 673, loc. cit. 684, 160 N.W. 6, 9, this court said: " Having established this rule of evidence for the trial of the case it should have been given consistent application throughout."
In Bremhorst v. Coal Co., 202 Iowa 1251, loc. cit. 1261, 211 N.W. 898, 904, this court said: " It was the duty of the court to give both parties the benefit of the same rules of evidence."
Of similar import are the other cases hereinabove cited.
In the case at bar the court, over defendant's objection, admitted testimony offered by plaintiff as to the reasonable market value of the property in question. Defendant's objection thereto was overruled. For the purposes of this case, if the evidence was admissible in favor of plaintiff, it was also admissible in favor of defendant. It may also be said that the evidence offered by the plaintiff tended to show the reasonable market value of the property in question. This testimony being introduced on behalf of plaintiff, it was competent and proper, under the rules announced in the foregoing cases, for the defendant to offer similar evidence in rebuttal thereto. The refusal to admit such evidence was sufficiently prejudicial to constitute error.
Appellant also contends that the court erred in holding that no valid assessment was ever levied by the executive committee of the defendant company, as required by its articles of incorporation.
Article V, § 5, of the articles, provides as follows:
Art. IV, § 3, provides that the president, vice-president, treasurer, and secretary shall constitute the executive committee. This committee, under section 5, art. V, of the articles, " shall meet quarterly and at other times when called by the president." Appellant contends that because such officers comprise the executive committee, and because they were present at board meetings held on March 15, 1932, and October 8, 1932, when motions to levy assessments were adopted, that such action was a sufficient compliance with the requirement that the executive committee " determine the time and rate of the assessments."
The record shows that the meeting of March 15, 1932, was a meeting of the officers and board of directors, at which the officers were present.
The defendant's secretary testified that:
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