Nicholas v. Iowa Merchants' Mut. Ins. Co.

• Decision Date: 20 October 1904
• Citation: 125 Iowa 262,101 N.W. 115
• Parties: NICHOLAS v. IOWA MERCHANTS' MUT. INS. CO.
• Court: Iowa Supreme Court

125 Iowa 262

101 N.W. 115

NICHOLAS

v.IOWA MERCHANTS' MUT. INS. CO.

Supreme Court of Iowa.

Oct. 20, 1904.

Appeal from District Court, Osceola County; F. R. Gaynor, Judge.

Action at law upon a policy of fire insurance. Defense, change in occupancy of the building insured, and failure to make due proof of loss. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.F. L. Ferris and O. J. Clark, for appellant.

C. M. Brooks, for appellee.

DEEMER, C. J.

The property insured was a frame dwelling house. It burned on November 15, 1901. At the time the policy was issued the property was occupied by the insured as a place of residence. Thereafter, and on or about August 20, 1899, the insured moved out of the house, and rented it to one Schell, who occupied it for a residence until about the 28th of October, 1900, when he moved out of the same, and it was rented to one Havinga, who occupied it for the same purpose until the time of the fire, save that he was temporarily absent therefrom for about one week immediately preceding the burning of the building. During the time of Havinga's absence the key to the house was left with a neighbor, who went to the building almost daily to water some plants which were left there during the temporary absence of the tenant. Plaintiff claims that shortly after he left the property and moved to Minnesota he notified the defendant that he had left the house, and rented the same to Schell, but defendant denies the receipt of any such letter. After living a short time in Minnesota, the plaintiff moved to Doon, Iowa; and while there, and on or about August 23, 1901, he wrote to defendant, suggesting that he be appointed an agent for it at that place. It also appears that he inclosed a premium installment on the policy in that letter. Responding to this, defendant noticed plaintiff's removal from Sibley to Doon, and asked if he wanted his policy transferred. The letter also made certain propositions regarding plaintiff's agency at Doon. This closed the correspondence until after the fire. Upon the happening of that event plaintiff immediately wired the defendant as follows: “Just received notice that my house at Sibley, covered by policy No. 6,899, was destroyed by fire last night. I am sending policy to Sibley Bank. Please attend to it at once.” Receiving no reply, he again, on November 27, 1901, wired the defendant, saying: “I wired you on the 15th, regarding my house burning at Sibley, policy No. 6,899. Did you get the message? Answer. D. H.” On the next day the plaintiff received from defendant the following letter: “We went to Sibley, and found things very unsatisfactory. You had moved your family. The tenant had not lived in the house for six weeks, and on that account the fire occurred. Had your family been in it, it would not have burned.” Thereafter, and on or about December 11, 1901, the Sibley Bank wrote defendant this letter: “Mr. W. W. Nicholas of Doon has forwarded to us your letter to him written November 27th last. He asked us to take the matter of the settlement of his loss up with you and we therefore ask for an explanation of your letter. You do not say what you are willing to do but simply say that you found things here unsatisfactory. If you refuse to pay for the loss under the policy be kind enough to so state, and oblige.” This closed the correspondence until January 21, 1902, when plaintiff wrote the company as follows: “Mr. Locke of the Sibley State Bank advises that you have not yet settled the fire loss there. Kindly advise what you are doing in regard to the matter and if I can look for a prompt settlement. This is a very small matter so far as you are concerned and a bad loss for me and I have no doubt an old line company would have settled this matter long ago but the representations of your Sibley agent led me to believe that in case of misfortune I could not be in better hands than yours so I trust you will promptly settle this matter and avoid further delay. In your note of some time ago you mentioned that the tenant had not lived in the house for six weeks, but he promptly denies this and says the few days that they were away his sister-in-law living just across the street took care of the house and so far as my family were concerned I wrote you upon leaving Sibley stating that I had rented the place so I do not understand your assurance that the place wouldn't have burned had we been living there as I certainly would never have insured the property if I knew that I would never have suffered loss and now the misfortune has overtaken us I trust you will do your duty promptly and avoid putting the matter in the commissioner's hands. Hoping for a prompt reply and speedy settlement also a continuation of good will on both sides.” This was followed by a letter from plaintiff's attorney, written under date of March 26, 1902, which need not be set out further than to say that it referred to defendant's refusal to pay the loss, and asked for an explanation thereof. To this defendant responded in this wise: “As to your inquiry about loss of W. W. Nicholas we will say we do not know anything definite about it. We have never denied or admitted liability. We have never seen Mr. Nicholas nor has he ever made any loss proof or sworn statement to this Company which sworn statement and loss proof would have set out the occupancy, the other insurance, the mortgagees, liens and other incumbrances, if any, the cause of the fire and the extent of the fire and all other matter material to the policy and damage claimed. We have not looked after it, supposed from information had from another insurance Company interested in the tenant that the claim, if any, had been found to be complicated and therefore was abandoned. Mr. Nicholas has never written this office but one letter, Jan. 21st, 1902, and in that matter set up no claim complying with the policy or statutes of the state. He has never said we owed him one dollar for loss or damage. If Mr. Nicholas had a just claim on this Company, why did he not file his claim as the law requires? He had his policy and it plainly stated Section 9, ‘Conditions of Insurance’ as you may read if you have the policy. We rely on the conditions of the policy and on Sections 1742, 1743, 1744, of the Code in all matters of claim for damages.” After the receipt of the telegram of notification, the president of the defendant company went to Sibley to investigate the loss, but he did not see plaintiff nor the bank which held the policy, and he says that he came to no conclusion as to how the fire occurred. He did, however, call upon the neighbors, and some insurance agents at Sibley, in order to ascertain the cause of the fire, but did not, he says, ascertain either the cause or the extent of the loss. No other proofs of loss were made by the plaintiff.

These are the material facts in the case, and thereupon two questions are raised by the defendant: First, it is insisted...