McComb v. Council Bluffs Ins. Co.

• Decision Date: 02 June 1891
• Citation: 48 N.W. 1038,83 Iowa 247
• Parties: MCCOMB ET AL. v. COUNCIL BLUFFS INS. CO.
• Court: Iowa Supreme Court

83 Iowa 247

48 N.W. 1038

MCCOMB ET AL.

v.COUNCIL BLUFFS INS. CO.

Supreme Court of Iowa.

June 2, 1891.

Appeal from district court, Marion county; A. W. WILKINSON, Judge.

Action on a policy of insurance to recover for a loss by fire. There was a trial by jury, and a verdict and judgment in favor of plaintiffs. The defendant appeals.R. W. Barger, for appellant.

Gesman & Prouty, Hayes Bros., Frank Perry, and S. S. Cole, for appellees.

ROBINSON, J.

In October, 1887, the defendant issued to plaintiff J. A. McComb the policy of insurance upon which this action is brought. The insurance was as follows: On building used as a mill, $1,300; on machinery and (exclusive of boiler and engine) shafting, gearing, cups, elevators, and mill-wright work, $1,600; on stock of flour, $500; on boiler and engine-house, $100; on boiler and engine and smoke-stack, $300. The loss, if any, was made payable to the plaintiff J. R. Chambers, mortgagee, as his interest should appear. On the 11th day of February, 1888, the building and nearly all the property insured were destroyed by fire. The plaintiffs demand judgment for $3,800 and interest, and ask that of the amount found due judgment for $2,400 be rendered in favor of the plaintiff Chambers on account of his mortgage. The jury returned a verdict in favor of plaintiffs for $3,979.23, and judgment was rendered in favor of Chambers, as requested, and in favor of J. A. McComb for $1,579.23 and costs.

1. Appellant contends that the action was prematurely brought, and complains of numerous rulings of the district court with respect to proof of the time when it was commenced. The plaintiff sent, and on the 15th day of March, 1888, the defendant received, verified proof of the loss which Mrs. McComb claims to have sustained. The return on the original notice, which was on file when the case was tried, showed that the notice was served on defendant on the 5th day of June, 1888. During the trial, after the evidence had been introduced by both parties, and after the opening argument had been made by plaintiff, the counsel for defendant, in the course of his argument to the court, presented a question of law arising upon the return of service on the original notice. Thereupon plaintiff asked leave to introduce evidence for the purpose of showing that the return had been altered after it was first made, and leave was granted against the objection of defendant. In that ruling there was no error. The question had not been referred to before during the trial, although near the close of a long answer, and in connection with other matter, the defendant had said that “this action is premature.” Why it was premature was not alleged, and the statement might easily have been overlooked by the plaintiff. That the claim of defendant that the action was prematurely brought, contrary to the provisions of section 3 of chapter 211 of the Acts of the Eighteenth General Assembly, because the original notice was served within 90 days from the time the notice of loss was given, was a surprise to plaintiff, is clear. If that was what defendant relied upon, the defense in question should have been pleaded in a separate division of the answer, but was in fact set out in connection with an averment to the effect that the proof of loss required by the policy had not been made. Under these circumstances it was within the discretion of the court, and entirely proper, to allow plaintiff an opportunity to show that the defense was not well founded. Code, § 2799; Sickles v. Bank, (Iowa,) 46 N. W. Rep. 1090. It is said that plaintiff was concluded by the return on the original notice from showing that the time of service was not as therein stated. But the evidence submitted on that question established beyond doubt the fact that the notice was not delivered to the officer for service, and was not served before the 5th day of July, 1888; that the return which the officer made showed that fact, but that it had been altered by some person, unauthorized and unknown. As defendant was in court, it was not material to show whether the service was made on or after the date named, it having been shown that it was not made before. The return which appeared of record, so far as it related to the date in question, was not the return of the officer; and when that fact was proven, and it appeared that the official return as to that date was not in...