Rundell & Hough v. Anchor Fire Ins. Co.
| Decision Date | 19 October 1905 |
| Parties | RUNDELL & HOUGH v. ANCHOR FIRE INSURANCE COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--HON. M. A. ROBERTS, Judge.
SUIT on a fire insurance policy. Trial to a jury, and verdict and judgment for the plaintiffs. The defendant appeals.
Affirmed.
Sullivan & Sullivan, for appellant.
McElroy & McElroy and McNett & Tisdale, for appellee.
The policy in suit contained a stipulation known as the iron-safe clause, which, in the instant case, is as follows:
The assured under this policy hereby covenants and agrees to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last two inventories of said business, which shall be taken annually, and further covenants and agrees to keep such books and inventories securely locked in a fire-proof safe at night, and at all times when the store mentioned in the within policy is not actually open for business, or some secure place not exposed to a fire which would destroy the house where said business is carried on; and in case of loss, the assured agrees and covenants to produce such books and inventories, and in event of failure to produce the same, this policy shall be null and void, and no suit or action at law shall be maintained thereon for any such loss.
There was a breach of this condition of the policy, and the defense is based thereon. The trial court instructed that the failure to comply with the provision of the policy as to keeping books and inventories and keeping the same in a safe place would not defeat the right of recovery, but that the provision requiring the production of such books and inventories in case of a loss made it incumbent on the plaintiffs to reasonably and substantially comply therewith when called upon to do so, and that a failure to produce such books and inventories would defeat recovery, unless a waiver of the breach of the condition was shown.
As we understand the argument on rehearing, the appellant does not now contend that the instruction is erroneous, though on the original submission such was in its contention. The appellees have not appealed, and, of course, cannot be heard to complain thereof, and this narrows the controversy to the question of waiver alone. On this question, the jury was instructed that, in order to establish the waiver, plaintiffs must prove that defendant, with full knowledge of the inability of plaintiffs to comply with the stipulation of the policy requiring them to produce the books and inventories "neglected to declare its intention of insisting on the forfeiture, but by its acts recognized and treated the policy as a valid and subsisting contract between it and the plaintiffs, and induced plaintiffs to act in that belief, and that plaintiffs thereupon did in fact incur trouble and expense." The statement that if the defendant "neglected to declare its intention," etc., was not a correct statement of the law, because mere neglect to insist upon a forfeiture would not alone constitute a waiver. Ervay v. Fire Ass'n, 119 Iowa 304; Keenan v Missouri State Mut. Ins. Co., 12 Iowa 126. To constitute a waiver, there must be some affirmative act on the part of the insurer, and it must be conduct which induces the insured to "rest on the well-founded belief that strict performance of a condition will not be insisted upon." Lake v. Farmers' Ins. Co., 110 Iowa 473, 81 N.W 710. But, when such conduct is shown, the insurer cannot in good faith set up the breach of the condition as a bar to recovery. See same case.
Mr Kirkham, the secretary and general adjuster of the appellant, went to Ottumwa to investigate and adjust the loss. He went to the residences of the plaintiffs, and made inquiries of Mrs. Rundell and Mrs. Hough as to the whereabouts of their respective husbands. They were not within reach, and he was so informed. He then inquired of Mrs. Rundell as to the time of the fire, by whom it was discovered, and her husband's first knowledge thereof, which of the two plaintiffs was in the store last the night of the fire, and the time that Mr. Rundell reached home. He also asked the amount of money that Mr. Hough had in the store at...
To continue reading
Request your trial