Reynolds v. Iowa & Nebraska Insurance Co.

• Decision Date: 07 October 1890
• Citation: 46 N.W. 659,80 Iowa 563
• Parties: REYNOLDS v. THE IOWA AND NEBRASKA INSURANCE COMPANY et al
• Court: Iowa Supreme Court

46 N.W. 659

80 Iowa 563

REYNOLDS v. THE IOWA AND NEBRASKA INSURANCE COMPANY et al

Supreme Court of Iowa, Des Moines

October 7, 1890

Decided October, 1890.

Appeal from Union District Court.--HON. JOHN W. HARVEY, Judge.

ACTION on a policy of insurance to recover the value of certain property destroyed by fire. There was a trial by jury, and a verdict and judgment for plaintiff. The defendants appeal.

AFFIRMED.

McIntire Bros., for appellants.

McDill & Sullivan, for appellee.

OPINION

ROBINSON, J.

On the twelfth day of June, 1884, the Iowa and Nebraska Insurance Company issued the policy upon which this action is founded. It purports to insure plaintiff against loss or damage by fire and lightning to the amount of eleven hundred dollars as follows: "On dwelling-house, including foundation cellar or basement walls, four hundred dollars; on household furniture while therein, one hundred dollars; on bed and bedding while therein, two hundred dollars; on wearing apparel while therein, one hundred dollars; on barn number 1 including foundation, three hundred dollars." The policy contained a further description of the property insured in words as follows: "All situated (except as otherwise provided) on and confined to the premises now actually owned and occupied by me, to-wit, two hundred and sixteen acres, section 36, township 71, range 28, township of Pleasant, county of Union, state of Iowa." The description of the property contained in the policy was copied from the application for insurance, signed by plaintiff, on which the policy was issued. The application warranted the description it contained of the property to be insured, including the title thereto, to be correct; and the policy provides that the application is a warranty on the part of the assured, and that any false representation by him shall have the effect to render the policy void. The term of insurance was five years. On the twenty-eighth day of September, 1888, the dwelling-house and nearly all the personal property, described in the policy, were destroyed by fire. At the time application was made, and the policy was issued, the title to the land on which the dwelling-house stood was vested in the wife of plaintiff, and that was the condition of the title when the property was destroyed. After the policy was issued, the name of the company was changed to "Western Home Insurance Company," and it is made a party defendant by both the old and the new names. The defense rests chiefly upon the alleged ground that a fraudulent misrepresentation of title was made to secure the insurance on the house. The jury found plaintiff entitled to recover sums as follows: On account of the house, four hundred dollars; on account of beds and bedding, two hundred dollars; on account of furniture, ninety-five dollars; and on account of wearing apparel, one hundred dollars; and judgment was rendered for the amount fixed by the verdict.

I. The application for the insurance in question was prepared and taken by a soliciting agent of the company which issued the policy, whose name was Tucker. It is admitted that at the time of the trial he was dead. After that fact was shown, the court permitted the plaintiff and his wife to testify in regard to the conversation they had with Tucker when the application was prepared and signed, and to repeat portions or all of that conversation. Appellants complain of the admission of that testimony, and claim that it was made incompetent by section 3639 of the Code. It is said that defendants are the survivors of Tucker, for that, as to him, they stood in the relation of partners. No authorities are cited in support of that claim, and we think it is not well founded. The word "survivor" is usually applied to the longest liver of two or more partners or trustees, and has been applied in some cases to the longest liver of joint tenants, legatees, and to others having a joint interest in anything. But, in our opinion, it has no application to persons related as principal and agent, and the ruling of the court in admitting the testimony was, therefore, correct.

II. It is shown that Tucker went to the residence of plaintiff to obtain an application for insurance. He prepared the application and read it to plaintiff. As prepared, it recited that the applicant had a warranty deed, and was the absolute owner of the property proposed to be insured. Plaintiff stated to Tucker, when those recitals were read: "You know better than that. You know that the land is not in my name. You know that the land is in my wife's name." Tucker answered that "it makes no difference. I am not insuring the land. I am insuring the house. If this house burns it does not hurt the land, and the land does not have anything to do with it." The wife of plaintiff at the same time said to Tucker: "If it makes any difference, I want you to change it. We want to deal fair and square." Tucker responded: "It does not make any difference at all. I am not insuring the land. I am only insuring the house and the household goods." Plaintiff was then, and had been for many years, occupying the house, and the land upon which it was situated, as a homestead and dwelling-place for himself and family. That fact was known to Tucker. The right to so occupy the house was of pecuniary value to plaintiff and he had an insurable interest therein. See Warren v. Insurance Co., 31 Iowa 464; Carter v. Insurance Co., 12 Iowa 291; Merrett v. Insurance Co., 42 Iowa 11; 11 Amer. & Eng. Enc. Law, 312. The knowledge of the agent at the time he...