McLaughlin v. Am. Fire Ins. Co.

• Decision Date: 16 December 1904
• Citation: 126 Iowa 149,101 N.W. 765
• Parties: MCLAUGHLIN ET AL. v. AMERICAN FIRE INS. CO.
• Court: Iowa Supreme Court

126 Iowa 149

101 N.W. 765

MCLAUGHLIN ET AL.

v.AMERICAN FIRE INS. CO.

Supreme Court of Iowa.

Dec. 16, 1904.

Appeal from District Court, Clayton County; L. E. Fellows, Judge.

Action on policy of fire insurance. Judgment for plaintiff on a trial without a jury. Defendant appeals. Affirmed.Dudley & Coffin and J. E. Corlett, for appellant.

M. X. Geske and D. D. Murphy, for appellee.

McCLAIN, J.

The loss for which recovery was sought was by lightning, and the defense was that the policy did not cover such loss. It appeared, without substantial conflict in the evidence, that the insured applied to the recording agent of defendant for a policy covering loss by both fire and lightning, and that the agent, having authority to contract for insurance on behalf of defendant, agreed that such policy should be issued, the risk to attach from the time the contract for insurance was made; that the recognized method of doing business by the agent in behalf of the defendant was to attach to the form of a policy which did not cover loss by lightning a slip containing the usual lightning clause; that the policy was made out by the agent without such slip being attached thereto, and was held by him without delivery to the insured until after the loss occurred, when, noticing the omission to attach the slip containing the lightning clause, he then attached such slip to the policy and delivered it to the insured; and that he had full authority to issue policies with the lightning slip attached, and omitted to do so in this particular case through an oversight.

There is some contention on the part of appellant that the risk was reported by the agent to the defendant company without mentioning the lightning clause, but it appears that what was reported was the continuance of the risk under a previous policy, and it does not appear in evidence whether such previous policy contained the lightning clause or not. But this we think immaterial. The agent had authority to contract for insurance on behalf of defendant, and to issue policies containing the lightning clause, and in this case it appears that he did contract for such insurance. It was not a matter with which the insured was chargeable that the risk was not correctly reported to the company. If the agent failed correctly to report the risk, the company, and not the insured, was chargeable with the omission.

The substantial contention for the appellant is that the agent had no authority to vary the terms...