Revere Fire Ins. Co. v. Chamberlin

• Decision Date: 21 June 1881
• Parties: REVERE FIRE INSURANCE COMPANY v. CHAMBERLIN ET AL
• Court: Iowa Supreme Court

8 N.W. 338

56 Iowa 508

REVERE FIRE INSURANCE COMPANY v. CHAMBERLIN ET AL

Supreme Court of Iowa, Des Moines

June 21, 1881

Appeal from Des Moines District Court.

ACTION to cancel a policy of insurance. The policy was issued to the defendant Chamberlin by the plaintiff's agent George A Duncan, covering a stock of goods which was destroyed by fire. The plaintiff avers that the policy was wrongfully and fraudulently issued; that the loss had already occurred, as the defendant and Duncan well knew, and that the policy was not issued in pursuance of a previous agreement by parol.

The defendant concedes that the policy was issued after the loss but denies that it was not issued in pursuance of a previous agreement by parol, and sets up such agreement. By way of counter claim he asks judgment for the amount of the policy. The court refused to cancel the policy, and rendered judgment for defendant for the amount of his proven loss. The plaintiff appeals.

AFFIRMED.

Hedge & Blythe, for appellant.

J. & S K. Tracy, for appellee.

OPINION

ADAMS, CH. J.

That insurance may be effected by parol is well settled. See The City of Davenport v. Peoria M. & F. Insurance Company, 17 Iowa 276, and cases cited. That insurance may not be thus effected the appellant does not seriously contend, but it insists that according to the preponderance of the evidence no parol agreement for insurance was made.

It appears from the evidence that Chamberlin had been previously insured in the Commercial Insurance Company of St. Louis, which was represented by Duncan. This company became insolvent, and Duncan agreed with Chamberlin to take up the Commercial policy and give him a policy in some other company. Whether the plaintiff company was agreed upon as the company in which the new policy was to be issued, is the question in dispute. For the purpose of proving that that company was agreed upon, Chamberlin was examined as a witness in his own behalf. His testimony was in these words: "On Saturday, June 16, 1877, about ten A. M., I met George Duncan on Phillip's corner, who told me that the Commercial Insurance Company, in which I had a $ 4,700 policy, was busted, and wanted to write me in another company. I asked him what good companies he had, and he gave me the names of some half a dozen, among them the Revere, of Boston. I asked him how the Revere stood. He replied, 'first rate,' and I said that Boston looked after her public institutions more closely than most cities; to put my risk in that company, and to make a memorandum of it so that I might know it was insured from twelve noon that day, saying, 'that is the understanding isn't it?' He said, 'yes, you are insured for $ 4,700 in the Revere from noon to-day,' and took out his book and made a note of it." Afterward the book was introduced, showing the note or memorandum to be in these words: "June 16, 1877, put E. Chamberlin $ 4,700 from Commercial in Revere Ins. Co. 1 year at 3/4 from to-day." This memorandum Chamberlin testified showed substantially the agreement. Duncan being examined in Chamberlin's behalf, testified to substantially the same facts. If these witnesses are to be believed, the agreement for insurance in the plaintiff company was clearly proved. But the plaintiff insists that they are not to be believed.

As impairing the credibility of Chamberlin, very little, if anything, is shown. But it is shown that Duncan, after his interview with Chamberlin, directed his clerk to make an entry of the insurance as taken in the German American Insurance Company, of Freeport. Such entry was made, and no change thereof was made until after the fire. It is also shown that while the fire was in progress Duncan stated that Chamberlin's insurance was in the German American Insurance Company. This evidence tended to show that whatever may have been said to Chamberlin, Duncan determined to issue to him a policy in that company instead of the Revere, and that the entry was made in pursuance of that determination, and not by mistake, as he claims. The clerk testifies that when he was directed to change the entry so as to show the insurance in the Revere, Duncan said that he was afraid that Mr. Chamberlin would kick, that Chamberlin had agreed upon the Revere, and that he could not explain it to him as he could have done if it had not been for the fire. But however little weight we might be disposed to give to Duncan's testimony in view of his proven statements and conduct, we are not able to say that Chamberlin's testimony is overcome. There is no direct evidence whatever that what occurred between him and Duncan was not substantially as he testified. If that is so,...