Runkle v. Hartford Ins. Co.

• Decision Date: 21 October 1896
• Citation: 68 N.W. 712,99 Iowa 414
• Parties: RUNKLE ET AL. v. HARTFORD INS. CO.
• Court: Iowa Supreme Court

99 Iowa 414

68 N.W. 712

RUNKLE ET AL.

v.HARTFORD INS. CO.

Supreme Court of Iowa.

Oct. 21, 1896.

Appeal from district court, Linn county; William G. Thompson, Judge.

Action at law upon a policy of fire insurance. Trial to a jury. Verdict and judgment for plaintiffs, and defendant appeals. Affirmed.McVey & Cheshire and Rickel & Crocker, for appellant.

Charles W. Kepler and J. W. Jamison, for appellees.

DEEMER, J.

On the 5th day of February, 1894, the defendant issued a policy of fire insurance for the sum of $3,500 to the firm of Wetzel & Bovey, upon their stock of general merchandise contained in a two-story brick building in the town of Lisbon, Linn county, Iowa. On the 29th day of May, 1894, the said building, with its contents, was totally destroyed by fire. After the fire, the firm of Wetzel & Bovey assigned their policy and the claim arising thereunder to the plaintiffs, in trust for the benefit of their creditors. This action was brought by the said assignees to recover the amount of the policy. In their petition, they claim that the value of the goods destroyed was $3,750, and they allege that their assignors mailed proofs of loss, duly signed and sworn to, to the defendant company, on the 18th day of June, 1894. The defendant admitted the execution of the policy, and the destruction of the property by fire, but denied each and every other claim of the plaintiffs. The policy of insurance contained this condition: “This entire policy shall be void * * * if the interest of the insured be other than the unconditional and sole ownership, * * * or if any change other than by death of the insured take place in the interest, title, or possession of the subject of insurance (except change of occupation without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise.” The defendant pleaded that the interest of Wetzel & Bovey at the time of the fire was not the sole and unconditional ownership of the property destroyed; that there was a change in the ownership of the property; and that Wetzel had no interest in it at the time of its destruction by fire; and that the goods were in the sole possession of Bovey at the time of the fire. Defendant further pleaded a condition rendering the policy void in case of fraud or false swearing by the insured touching any matter relating to the insurance, or the subject thereof, whether before or after the loss; and it said that this condition had been violated by the assured, because their proofs of loss contained a statement that they could not set forth a statement of the items or character of the goods destroyed, which statement was false and untrue. They also pleaded a statement made to their adjusting agent with reference to the ownership of the goods; but they did not claim that this statement was untrue, as we understand the record. In reply, the plaintiffs denied the affirmative allegations of the answer, and further pleaded that the statements made to the adjusting agent, which are referred to by the defendant, were obtained by fraud and misrepresentation practiced upon them by the defendant's agent. On these issues the case went to trial to a jury, resulting in the verdict and judgment from which this appeal is taken.

1. The defendant's first contention is that the court erred in overruling its demurrer to that part of the reply pleading that the statements made to the agent of the company were obtained through fraud. It is said that this is a plea in the nature of a confession and avoidance, and that there is no express admission that the statement was in fact made; in other words, that the pleading does not give color. Without setting out the reply in hæc verba, we think it sufficient to say that there is an implied admission in it that the plaintiffs did sign the statements which are relied upon by the defendant, and that there is sufficient color to the pleading. It is not necessary that the confession be in express terms. If the reply, by reasonable implication, admits the facts sought to be avoided, this is sufficient. It is said, however, that the reply is a general denial, and that, for this reason, no confession will be implied. But this view overlooks the fact that inconsistent defenses may be pleaded. True, they ought to be separate divisions or counts, but, if not so framed, a demurrer is not the proper pleading to reach them. See Morgan v. Insurance Co., 37 Iowa, 359.

Defendant further contends that the reply is insufficient because it does not set forth the facts constituting the fraud relied upon by them to defeat the effect of the statements made to the agent. This position is without merit, because the pleading does contain a general statement of the facts relied upon, and is sufficient.

It is also said that the reply contained simply a statement of the evidence, and was not defensive matter. If this proposition be conceded, it follows that there was no prejudicialerror in overruling the demurrer. Aside from all this, it is clear that the statements referred to in the answer were not issuable facts. They were simply admissions made by plaintiffs' assignors, which defendant was privileged to introduce in support of the issue tendered by it, and a reply thereto was wholly unnecessary.

2. Error is assigned upon the admission of the proofs of loss in evidence, because it is said there is no evidence that they were served upon the defendant. The record shows that defendant was given notice to produce the papers, and that “the counsel for plaintiffs also offered in evidence a paper marked ‘Exhibit B,’ which was handed to counsel by counsel for defendant on notice to produce; it being the proof of loss served upon the defendant, and referred to in the plaintiffs' petition.” This seems to meet the claim made by defendant's counsel. If it be conceded that this is not sufficient to establish service of the proofs of loss upon the defendant, yet neither the statute nor the policy requires formal proof of service. All that is required of the assured by either policy or statute is that they give or render to the company proofs of loss. As they were found in the possession of the insurance company, and were produced by it upon the trial, the requirements of the contract and of the law were fully met. The defendant does not claim, either in its objections or in argument, that it did not receive the paper in time.

Further complaint is made of the introduction of this paper because it is said some of the statements made therein are untrue. If this were so, it would be no reason for excluding the paper. Defendant would need it as a predicate for its defense.

3. Complaint is made of the court's refusal to submit seven certain special interrogatories submitted by defendant. To a better understanding of the question presented, it is well to recite some of the facts disclosed by the record. It seems that, at the time the insurance was written, Wetzel & Bovey was a partnership composed of Henry Wetzel and J. G. Bovey. On or about May 6, 1894, the members of this firm had some talk about dissolving partnership; and, as neither was able to buy out the other, they concluded upon a division of the stock. Pursuant to this arrangement, they each selected a man to make division of the goods, and these men so selected proceeded with their work. In order to accomplish it, they placed the goods in two piles, and those that were to...