Siltz v. Hawkeye Ins. Co.
| Citation | 29 N.W. 605,71 Iowa 710 |
| Parties | SILTZ v. HAWKEYE INS. CO. |
| Decision Date | 19 October 1886 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from Decatur district court.
Action at law upon a policy of insurance, to recover the amount insured against loss by fire upon a building and certain contents, owned by plaintiff. There was a judgment upon a verdict for plaintiff. Defendant appeals.Phillips & Day, for appellant.
E. W. Curry, Bullock & Hoffman, and J. B. Johnson, for appellee.
1. We will, in the consideration of the case, notice the objections to the judgment in the order of their presentation by defendant's counsel, and will state the facts involved in each point in connection with the discussion thereof.
F. S. Siltz, the husband of plaintiff, and a witness in her behalf, testified that, three or four days after the fire W. C. Cole came to the house of the witness, claiming to represent defendant, and that the purpose of his visit was to settle and adjust the loss. He made out proofs of loss. The witness was then permitted to state, over defendant's objection, that Cole said he was the assistant secretary of defendant. The evidence was admitted, upon the proposition of plaintiff's counsel to follow it with other evidence showing the official relation of Cole to defendant. Such evidence was afterwards introduced, and shows conclusively that he was the assistant secretary, and a director and stockholder of the company; that he visited the plaintiff as an agent of the company, after the loss, with reference to it; and that he prepared papers, or superintended or assisted in their preparation, pertaining to the proofs of loss, though he did not complete such proof. The fact that Cole was assistant secretary of defendant being conclusively established by other testimony, the admission in evidence of his declarations or statements to that effect, if erroneous, is without prejudice to defendant.
2. The policy covered certain personal property, described in it as “restaurant goods.” A witness was asked the value of these goods, and in response was permitted, over defendant's objection, to state it. The objection is based upon the ground that the question called upon the witness to construe the language of the policy, and determine what goods were covered by the description. There is no force in the objection. If the goods were so generally known as to be described in the policy by the designation “restaurant goods,” it will be presumed that the witness understood the designation. He certainly could refer to the goods by the name used in the policy to designate them. If any question existed as to the goods valued by him belonging to the class covered by the policy, the witness could have been called on, in the cross-examination, to further describe the goods to which he referred in his answer.
3. Two or three objections to the admission of evidence are referred to in defendant's argument simply by a statement of the points made, without any argument thereon. We are not required to consider points not argued.
4. The policy contains a condition to the effect that, in case of loss, if there be liens or incumbrances on the property, defendant shall be liable for no more than three-fourths of the interest of assured, after deducting from the actual cash value of the property the amount of the liens or incumbrances. The answer alleges that there was a mortgage upon the property, and that its value, determined by the terms of the policy, did not exceed the amount due upon the mortgage. Counsel for defendant complain that the court below omitted to present the issues raised by this defense. There is no ground for this complaint. The defense pleaded, and the issues thereon, are fairly and fully presented in an instruction,--the tenth. It is as well presented in that connection as though it had been found in the statement of the pleadings and issues preceding the instructions.
5. The court, in the same instruction, directed the jury, if they found plaintiff entitled to recover, to deduct the amount of the mortgage from the value of the property, and if the sum thus ascertained equaled or exceeded the amount they found for plaintiff, which must not exceed the sum insured on the property, they could render a verdict for the plaintiff in the amount thus found for her. Counsel insist that this instruction should not have been given for the reason that there was no evidence of the value of the property. Upon this question there was no controversy in the evidence at the trial. Plaintiff testified that she gave $3,500 for the real estate, and its value is stated at that sum in the application for insurance. In the absence of any evidence or claim to the contrary, the jury were authorized, for the purpose of the inquiry, to find its value in that sum.
6. The policy contained a condition to the effect that “any fraud, or attempt to defraud, or false oath or declaration, or claim for an amount more than is actually due,” shall defeat recovery on the policy. The answer alleges that plaintiff violated this condition by filing her petition in this case, under oath, alleging the value of the property destroyed to be $1,000, and that the amount of the policy ($750) is due her, and did not disclose the existence of the mortgage; that she further violated it in her proofs of loss, by stating the value of the personal property at a sum in excess of its true value; and that she also violated the condition by...
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