Slafter v. Concordia Fire Ins. Co.
| Decision Date | 08 April 1909 |
| Citation | 120 N.W. 706,142 Iowa 116 |
| Parties | R. A. SLAFTER, Appellant, v. THE CONCORDIA FIRE INSURANCE CO., Appellee |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.
ACTION at law upon a policy of fire insurance. To defendant's answer pleading defenses in four separate divisions plaintiff demurred. This demurrer was overruled, and, plaintiff electing to stand thereon, judgment was rendered against him for costs, and he appeals.
Affirmed.
Ira J Alder and Baker, Ball & Ball, for appellant.
O. A Byington and Wade, Dutcher & Davis, for appellee.
Defendant issued its policy to plaintiff covering a stock of merchandise in the city of Iowa City. The policy was issued May 22, 1907, and the property was destroyed by fire June 3 1907. Proofs of loss were duly made, and this action brought on October 24, 1907. Among other conditions of the policy was the following: "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be personal property and be or become encumbered by a chattel mortgage." Defendant pleaded that this condition was broken by reason of the execution by plaintiff of the following contract:
In consideration of indorsement of a note for one thousand dollars ($ 1,000) made payable at the First National Bank for one year to become due Jan. 30, 1908, at 7 per cent. interest, I the undersigned hereby agree to the following, to wit: To pay $ 100.00 on said note the third month, and to pay a like sum of $ 100.00 for six (6) consecutive months each month at the First National Bank and then to pay to Chas. Lake a like sum of $ 100.00 for two consecutive months, making a total of $ 200.00 paid to Chas. Lake, which shall not be considered a payment on said note, but shall be a remuneration for services, including time and trouble attendant upon said indorsement. To pay the balance of $ 400.00 due on said note at same rate as above; that is, $ 100.00 per month beginning after the payments to Chas. Lake until said note is paid in full, together with interest due thereon. In case of failure to pay said note as agreed, I hereby agree to sell and transfer to said Chas. Lake a sufficient amount of my interest in the stock of merchandise in the Donnell Manufacturing Co., located in this city, to cover such deficiency and do hereby authorize said Chas. Lake to enter said Donnell Manufacturing Company's Sales Agency, and to take possession of such merchandise as may be necessary to pay balance of said note together with costs, if any. R. A. Slafter.
This note or contract is alleged to have been made on January 30, 1907, and it is contended that, by reason of the execution thereof, the policy became void because plaintiff was not the sole and unconditional owner of the property, and for the further reason that the property was incumbered by chattel mortgage when the policy issued.
Another condition of the policy read in this wise: "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if any change other than by death of an insured take place in the interest, title, or possession of the subject of insurance, whether by legal process or judgment or by voluntary act of the insured, or otherwise." It is contended that this condition was violated by the execution of the note or contract above set out because thereby a change did take place in the interest, title, and possession of the property. Another provision of the policy reads as follows: "This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise a material fact or circumstance concerning this insurance or the subject thereof." The execution of the contract heretofore set out is pleaded as a breach of this condition. Defendant also pleaded the following as a breach of this condition:
That application was made for the insurance by the plaintiff to Thomas Brennan, the agent of the company at Iowa City, Iowa, and that said Thomas Brennan had no knowledge and no means of knowledge of the value of the property sought to be insured; that the plaintiff was a stranger to him, having known him but a short time, and that the said plaintiff falsely and fraudulently misrepresented the value of the property covered by said policy to be the sum of $ 2,500; that said representation was false, and known to the plaintiff to be false; that in truth and in fact the said property, as the defendant is informed and believes, did not exceed in value the sum of from $ 500 to $ 1,000, and that the said plaintiff, knowing its value, fraudulently misrepresented the same as aforesaid, and concealed from the defendant and its agent the true value of said property, and defendant therefore says that, by reason of the false representation as to value thereof, the said policy became and is void.
Another defense pleaded by defendant we copy from the answer as follows:
Defendant says that said policy contains the provision that the same should be void in case of any false swearing on the part of the insured touching any matter relating to the insurance or any matter hereof, whether before or after the loss, and defendant avers that, after said alleged loss, the plaintiff prepared and delivered as part of the proofs of loss in said case a statement in writing, alleging that he was the absolute owner of said property at the time of the loss, and that there was no lien or encumbrance upon the said property; that said statement so sworn to by the said plaintiff was false by reason of the execution of the note or contract before mentioned.
Another defense interposed reads as follows:
The defendant alleges that the policy of insurance issued by the defendant to the plaintiff, upon which suit is brought, contained the following provision: Defendant alleges that the plaintiff violated the foregoing provision of said policy, and that he failed and refused to protect the property from further damage; that he failed and refused to separate the damaged and undamaged personal property, to put it in the best possible order, and to make a complete inventory of the same as required by said policy; that, on the contrary, the said plaintiff permitted divers persons to the defendant unknown to enter the building in which said property was located at the time of the alleged fire, and permitted them to handle and to carry away a portion of the property described in the policy, and permitted them to trespass upon said property, and otherwise failed to carry out the letter and spirit of the above-quoted provision; that, by reason of the conduct of said plaintiff, he is not entitled to maintain this action.
The demurrer interposed by plaintiff challenges the sufficiency of these defenses as a matter of law. The demurrer is to each count or division of the answer, and it was overruled "as to all grounds."
It will be observed that defendant in one count or division of its answer pleaded plaintiff's failure to properly care for the property. The demurrer to this division read as follows "Plaintiff demurs to the second paragraph pleaded as a separate defense in the first amendment to answer filed May 14, 1908, for the reason that the same does not state facts sufficient to constitute a defense, in this: the facts alleged in said paragraph plaintiff failed and refused to protect the property from further damage, and failed and refused to separate the damaged and undamaged personal property, and permitted divers persons to enter the building where the property was located at the time of the fire, and permitted them to handle and carry a portion of the property described in the policy, and the further facts alleged in said paragraph do not constitute a defense to plaintiff's cause of action." Sections 3562 and 3575 of the Code read as follows: Section 3562: "A demurrer must specify and number the grounds of objection to the pleading; and it shall not be sufficient to state the objection in the terms of the preceding section, except that a demurrer to an equitable petition, for the fifth reason of said section, may be stated in the terms thereof." The...
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