Ross v. Hawkeye Ins. Co.

• Decision Date: 16 January 1895
• Citation: 93 Iowa 222,61 N.W. 852
• Parties: ROSS v. HAWKEYE INS. CO.
• Court: Iowa Supreme Court

93 Iowa 222

61 N.W. 852

ROSS

v.HAWKEYE INS. CO.

Supreme Court of Iowa.

Jan. 16, 1895.

Appeal from district court, Shelby county; Walter I. Smith, Judge.

Action to recover upon a policy of insurance against loss by fire. Plaintiff alleges that the merchandise and fixtures insured were destroyed by fire on or about the 1st day of July, 1889. Defendant answered, admitting the policy, that the fire damaged some of the insured property, and denying that the fire occurred on the 1st day of July, 1889. That the policy sued on was issued in consideration of a promissory note of the plaintiff in words and figures, as follows: “$60.00. Des Moines, Iowa, April 1, 1889. On the first day of July, 1889, for value received, I promise to pay the Hawkeye Insurance Company, at their office in the city of Des Moines, Iowa, sixty dollars, with interest at the rate of eight per cent. per annum from date, being premium for insurance, under policy No. 192,542. And it is hereby agreed that, if this note is not paid at maturity, the whole amount of premium of said policy shall be considered as earned and payable, and the policy shall be null and void; and the company shall not be liable for any loss or damage that may occur to the property insured while this note shall be overdue and unpaid; and if this note remains unpaid for the period of sixty days after maturity, then I agree to pay said company the further sum of ten per cent., on the amount due as fees for collecting the same. George D. Ross. P. O. Address, Harlan, county of Shelby, Iowa,” That said policy was made and accepted on the conditions therein, one of which is to the effect that a failure to pay said premium note at maturity “shall immediately terminate all liability of this company under this policy, and the company shall not in any case be liable for any loss or damage that may occur at a time when any such note or notes, or any installment therein, or any part thereof, shall be overdue and unpaid.” Defendant avers that on the 1st day of June, 1889, it served on the plaintiff a notice in writing, by inclosing it in a registered letter addressed to plaintiff at Harlan, Iowa, the post-office address named in the policy, notifying him that said note would be due on the 1st day of July, 1889, demanding payment, and stating that “unless such payment is made within thirty days from service of this notice your policy will be suspended.” The notice also called attention to the conditions in the policy and note, stating that if the note was not paid when due the policy would become suspended. Defendant alleged that the note fell due July 1, 1889, and, being overdue and unpaid, the policy was suspended, and defendant was not liable thereon for the alleged loss. Plaintiff in reply denies that the defendant served said notice on him on the 1st day of June, 1889. A further issue was joined by amendment to the answer and reply that need not be noticed. The cause was tried to a jury, and a verdict and judgment in favor of the plaintiff. Defendant appeals. Affirmed.Sanderson, Stuart & MacKenzie, for appellant.

Smith & Cullison, for appellee.

GIVEN, C. J.

1. The evidence shows without conflict that the loss occurred on July 2, 1889, and the court so instructed the jury. The premium note fell due on July 1, 1889, and was unpaid at the time of the fire, wherefor appellant claims that the policy was, by reason of said condition therein, and in the note, and the service of said note, suspended at the time of the loss. Appellant's first contention in argument is that sections 1, 2, c. 210, Laws 1880, providing that such policies shall not be declared forfeited or suspended for nonpayment of premium until after 30 days' notice is given, is unconstitutional. It is entirely clear from the record that this question was not raised in or presented to the district court. Appellant does not present the question either in the pleadings, motion for verdict, or instructions asked. On the former appeal, and on both trials below, the defense that the policy was suspended at the time of the loss was grounded on the alleged compliance with said chapter 210.

The constitutionality of said act is first questioned in the assignment of errors. Appellant concedes that this question was not presented to the district court, but insists that it may be presented in this court for the first time as reasons why...