Meadows v. Hawkeye Ins. Co.

• Decision Date: 11 December 1883
• Citation: 62 Iowa 387,17 N.W. 600
• Parties: MEADOWS v. HAWKEYE INS. CO.
• Court: Iowa Supreme Court

62 Iowa 387

17 N.W. 600

MEADOWS

v.HAWKEYE INS. CO.

Supreme Court of Iowa.

Filed December 11, 1883.

Appeal from Ringgold district court.

Action upon a policy of insurance. There was a judgment upon a verdict for plaintiff. Defendant appeals. The facts of the case are stated in the opinion.R. W. Barger, for appellant.

Henry & Spence and Laughlin & Campbell, for appellee.

BECK, J.

1. The policy contains a condition in the following language: “The commencement of foreclosure or other proceedings upon any mortgage, lien, or incumbrance of any kind, or of any suit or action in any court concerning the title in anywise, shall immediately render this policy null and void.” The answer alleged that, subsequent to the execution of the policy, foreclosure proceedings were commenced upon a mortgage covering the property insured, which resulted in a decree therein, upon which the property was sold prior to its destruction by fire. The defendant insists that the policy is void under the condition above quoted. The plaintiff filed a reply, wherein he alleges, among other matters, that he has neither knowledge nor information sufficient to form a belief as to the truth of the allegations of the answer. In another count of the reply he avers “that it is true that on or about the time stated in the answer there was a certain mortgage foreclosed against said premises, as stated in the answer, but such mortgage was not made by plaintiff, nor was plaintiff liable therefor, or for the payment thereof; that there was a sale of said premises thereunder, as alleged by defendant, but that defendant had full knowledge of the commencement and prosecution of such foreclosure proceedings from their commencement to their close, and did not in any manner notify plaintiff that the policy sued upon was avoided, or that it would insist on a forfeiture thereof; and that ever since plaintiff made his application for said policy up to the present time, defendant has held the note of plaintiff given for the premium under said policy, and has permitted interest to accumulate thereon, and has never offered to return said note to plaintiff.” The reply further alleges that defendant, with full knowledge of the facts, notified and requested plaintiff to furnish proofs of loss, which was done, at loss of time, trouble, and expense. A motion to strike, and a demurrer, were directed against the parts of the answer just set out and recited, but each was overruled. A like motion and demurrer to another part of the reply--the second count--were sustained. These findings, and others filed in the case, need not be more particularly referred to in this opinion.

Upon the trial the plaintiff introduced in evidence the policy, and proved the destruction of the property insured by fire, and thereon rested his case. The defendant thereupon asked the court to direct a verdict to be brought in for it on the ground that plaintiff admitted in his reply the facts pleaded by defendant, which annulled and avoided the policy, and the evidence does not tend to show any waiver of the forfeiture, or any promise or agreement of defendant to pay the loss. The motion was overruled and a verdict was had for plaintiff, upon which judgment was rendered.

2. We shall first inquire whether the reply of plaintiff admitted the allegations of the answer setting up a forfeiture of the policy. A reply is not permitted except when a counter-claim is set up, or some matter is pleaded in the answer to which plaintiff claims a defense by reason of facts which avoided the matter alleged in the answer. Code, § 2665. The reply is not admissible except to a counter-claim, or to plead matter in avoidance of the defense set up by the defendant. In order to avoid the defendant's defense it must of course be admitted, for reason would not permit a party to allege an avoidance of a defense which is wholly denied. If the allegations sought to be avoided are not true, it is plain that matter pleaded in avoidance can have no existence. The very meaning of the words “avoid” and “avoidance,” when used by pleaders, implies the admission of the defense sought to be avoided. Bouv. Law Dict. Indeed, there cannot be an avoidance without a confession of the defense sought to be avoided. Gould, Pl. 34; 1 Chit. Pl. 556.

3. Counsel for plaintiff insist that as inconsistent defenses may be stated in the same answer or reply, (Code, § 2710,) we must regard plaintiff's reply as both denying the...