Martin v. Capital Ins. Co.

• Decision Date: 26 May 1892
• Parties: MARTIN v. CAPITAL INS. CO.
• Court: Iowa Supreme Court

85 Iowa 643

52 N.W. 534

MARTIN

v.CAPITAL INS. CO.

Supreme Court of Iowa.

May 26, 1892.

Appeal from district court, Dallas county; A. W. WILKINSON and J. H. HENDERSON, Judges.

Action on policy of insurance. Verdict and judgment for plaintiff. Defendant appeals.Read & Read, for appellants.

Cummins & Wright, for appellee.

KINNE, J.

1. The policy under which the insurance is claimed ran to John Fitzsimmons and plaintiff, and was for $1,000 upon a frame building, and for $500 upon furniture, wearing apparel, etc., contained therein. Plaintiff filed her petition in the usual form, asking for $1,500 upon said policy, and alleging the assignment to her of the claim of John Fitzsimmons and the due performance by her of all the conditions of the policy; that the value of the personal property destroyed was $1,200, and the value of the building $2,000; and attached to her petition a copy of the policy and of the proofs of loss. Defendant, in its answer, admits its corporate capacity, and that it issued the policy sued upon, and denies all other allegations in plaintiff's petition. It also pleaded that since the commencement of the action the claim under the policy against it had been settled, and the sum agreed upon--$200--paid plaintiff. Also that the policy was procured by fraud and misrepresentation by plaintiff and her agents that said building was then used as a private dwelling house, and that it would be used for no other purpose during the continuance of the policy, and especially that said building was not then used, and should not thereafter during the life of said policy be used, as a saloon, or as a place where intoxicating liquors were kept or sold in violation of law. That said representations were relied upon by defendant, and it was thereby induced to issue its policy upon the property; and that said representations were false, and defendant tenders plaintiff the premiums received. A further defense is that, contrary to the conditions of the policy, the risk was changed and increased by keeping and selling intoxicating liquors in the building insured; that plaintiff did not use the proper means to save and protect the insured property from loss, as required by the policy. Plaintiff demurred to the third and sixth counts of the answer, and it was sustained, and defendant filed an amendment setting out substitutes for said counts, alleging in substance that at the time the policy was issued and afterwards the premises were used as a place where intoxicating liquors were sold in violation of law, etc., and that plaintiff, in making her proofs of loss, fraudulently concealed such fact for the purpose of defrauding defendant. The cause was tried to a jury, who found for plaintiff.

2. It is said that the court erred in sustaining the demurrer to the third and sixth counts of the answer. We think the ruling on the demurrer to these counts of the answer was waived by defendant's pleading over.

3. The plaintiff, on cross-examination, was asked questions relating to officers having searched the house for intoxicating liquors, and how many times it had been thus searched. An objection was sustained thereto on the ground of immateriality, and because it was not proper cross-examination. The ruling of the court was correct. The witness had not been asked on direct examination anything touching that matter.

4. Witness Morgan was asked why he did not make any effort to remove anything from the house, and whether or not any one told him not to do so. We think these questions as put under the circumstances were objectionable. Defendant then proposed to prove that the witness undertook to save the personal property which was in the house, and was told by persons in the presence of plaintiff not to do so; to let it go, as it was no good to her. The court directed defendant's counsel to proceed and ask his questions, and he would rule upon them. This he did, and the testimony was admitted. The witness was asked: “What, if anything, was said about Mrs. Martin's directions to them?” An objection to it as incompetent was properly sustained. The evidence showed plaintiff was from 30 to 36 feet away at the time, and there is nothing to show that she could or did hear the conversation between the parties and the witness, or that she had been taking any part in the conversation.

5. Witness Myers was asked if Mrs. Martin informed him at the time the policy was issued that the building was used as a place where intoxicating liquors were sold in violation of law. An objection was sustained to it as being incompetent. Defendant's counsel then proposed to prove by the witness that at the time the policy was issued plaintiff did not disclose or state that the property was so used. The court suggested that he ask the questions, and he would rule on them. Defendant declined, and excepted. Surely the court must have power to exercise a reasonable discretion as to the manner of introducing the testimony. The suggestion of the court was proper, and within its discretion, and, having failed to act thereon, defendant cannot complain.

Complaint is also made because, after all the evidence on both sides was introduced, the court permitted plaintiff, against defendant's objection, to call a witness as to the value of the building in controversy. There was no error in this. Under the statute the policy is prima facie evidence of the value of the building; hence it was not incumbent on plaintiff in the first instance to prove its value. Acts 18th Gen. Assem. c. 211, § 3; Joy v. Insurance Co., (Iowa,) 48 N. W. Rep. 1049. Defendant having introduced evidence relative to the value of the building, the court properly permitted plaintiff to rebut the same.

6. Complaint is made because the court sustained objections to questions asked witnesses Campbell and Bell as to whether or not the use of a dwelling house as a place where intoxicating liquors were sold in violation of law increased the hazard of the risk. It was sought by one of these witnesses to show a certain classification of risks which was printed in a book. It would seem, in such a case, that the book would be the best evidence; but whether that be so or not is not material, as this testimony was afterwards admitted. So the ruling, in any event, was without prejudice.

7. Error is alleged in refusing to give the first instruction asked by the defendant, and in giving the eleventh, twelfth, and thirteenth instructions by the court on its own motion. The instruction asked by defendant, in substance, was that Cardell and Nichols had authority as attorneys, if they acted in good faith in the exercise of their best judgment, to settle and compromise the claim of the plaintiff. The eleventh instruction complained of, and which was given by the court, was in effect that, if the claim sued upon was fully settled by Cardell and Nichols, plaintiff's attorneys, and they had authority from plaintiff to make said...