State Ins. Co. of Des Moines, Iowa v. Du Bois

• Citation: 44 P. 756,7 Colo.App. 214
• Court: Court of Appeals of Colorado
• Decision Date: 09 December 1895
• Parties: STATE INS. CO. OF DES MOINES, IOWA, v. DU BOIS et al. [1]

44 P. 756

7 Colo.App. 214

STATE INS. CO. OF DES MOINES, IOWA, v. DU BOIS et al. ^[1]

Court of Appeals of Colorado

December 9, 1895

Appeal from Arapahoe county court.

Action by Bradford H. Du Bois and another against the State Insurance Company of Des Moines, Iowa. Judgment for plaintiffs, and defendant appeals. Affirmed.

On and prior to July 31, 1889, appellees Bradford and Jacob J.B. Du Bois, brothers, were owners of a farm in Lucas county, Iowa, upon which was a barn of the value of $2,600, and two water tanks of the value of $60. The title to the property was in both brothers equally, as tenants in common, and was by devise and will of a deceased uncle. On the date above mentioned, Bradford H. Du Bois applied to the local agent of appellant, one R.S. Gray, for insurance upon the barn, water tanks and hay stored in the barn, water tanks, and hay stored in the barn, to the amount of $1,200,--$1,000 upon the barn, $150 upon the hay, and $50 upon the water tanks. An application for the insurance was made out by the agent, and signed by the applicant, Bradford H. Du Bois, in which it was stated that the title was in the name of applicant, Bradford H., and that the title was by warranty deed. The policy was made out by the agent, the money premium of $18 received by the agent for insurance for five years from date, and the policy and the application were sent by the agent to the company for approval. The application was approved, and policy issued for the $1,200 on the 3d day of August, 1889. On the 26th of September 1892, the insured property was consumed by fire; and, within the prescribed time, proof of the loss was made. No question is made as to the regularity of the proof of loss, or the value of the property destroyed. The following appears in the policy of insurance: "And it is expressly understood and agreed by the parties hereto that application and survey No 332,188, made by the assured, is hereby made a part of this policy, and a warranty on the part of the assured, and that this policy is issued upon the faith of the statements in said application and survey, as they thus appear in writing therein, only." The legal defenses interposed were: First, that the suit was instituted in less than 90 days after the service of the notice of loss, when, by a provision of the statute of the state of Iowa, it was declared "that no action shall be begun within ninety days after such notice shall have been given"; second, that the alleged misstatement of the title by Bradford H. vitiated the policy, and rendered it void. To the second defense, plaintiffs replied as follows: "And, further replying to said fourth and fifth paragraphs and defenses of said answer, plaintiffs allege that shortly prior to the issuing of said policy of insurance the plaintiff Bradford H. Du Bois was solicited and requested by the duly-authorized agent of the defendant to insure the property described in the complaint with said defendant company, and thereupon said solicitor and agent of the defendant examined said property, and had and obtained full information with respect to the same; and said agent, without any direction or authority from said Bradford H. Du Bois or the plaintiffs, filled out a pretended application by writing in certain alleged answers to printed questions upon a blank form furnished by the defendant to its said agent for that purpose, and presented the same to Bradford H. Du Bois for signature, within the said state of Iowa, which is the alleged written application referred to in said answer. And plaintiffs further say that, prior to the signing of said pretended written application, said Bradford H. Du Bois duly and fully informed defendant's said agent of the facts with reference to the title and ownership of said insured property, and the lands and premises upon which the same was situated, and then and there informed said agent that said property and premises belonged to the plaintiffs jointly and in common, and that the said property and premises had been devised to the plaintiffs by will, and that said Bradford H. Du Bois was transacting business with reference to said property and premises, and obtaining insurance thereon for both of the plaintiffs, and in their joint interest. Plaintiffs further say that it was then and there represented and stated to said Bradford H. Du Bois, by defendant's said solicitor and agent, that it was right and proper for said Bradford H. Du Bois to sign his name alone to the application so prepared and made out by said agent as aforesaid, and that the insurance to be written thereon by the defendant would cover all of said insured property, and the interests of both of said plaintiffs therein; that said Bradford H. Du Bois had no knowledge of said alleged representations, inquiries, and responses thereto, or said alleged warranties or statements contained in said application, but relied upon the statements of defendant's said agent with respect to the same; that said policy of insurance was written and delivered by the defendant to the plaintiffs, and was received and paid for by them, through the said Bradford H. Du Bois, in full reliance and upon the faith of said representations and declarations of said defendant's agent aforesaid, and with full knowledge on the part of the defendant of the title and ownership of the plaintiffs to and in said insured property, and the premises on which the same are situated, as above set forth, and for the purpose of insuring the interests of both the plaintiffs in said insured property, and not otherwise." A trial was had to a jury. Verdict for plaintiffs for $1,283.60, from which $8 was remitted. Judgment upon the verdict, from which an appeal was taken to this court.

Sylvester G. Williams, for appellant.

Stuart D. Walling, for appellees.

REED P.J. (after stating the facts).

We cannot agree with the contention of counsel that the statute of the state of Iowa limiting the time in which an action could be commenced to 90 days was operative and controlling in this state. Even in that state, with the statute in existence, the statute could be waived by contract; and when waived, and an absolute contract made to pay in 60 days, a cause of action would accrue upon default of the payment, and the law would be powerless to extend the time, and make a new contract differing from the one made by the parties. Where no contract was made as to the time of payment, perhaps the legislature could make one, but a law changing and making a new contract for the parties would be of very doubtful validity, even if it operated on all obligations to pay; but it, by its terms, is confined to one line of contracts, and might be classed as specific or "class" legislation, that is always regarded as of very doubtful constitutionality. But, however this may be, we are satisfied that the statute is purely remedial in its character, does not affect the contract, but only the remedy to enforce it, and, if valid, can only be made available within the state,--a sort of a statute of limitations, which is purely local in character, and that has no extraterritorial application or force; and the trial court so properly held.

2. The pleadings clearly set out the only important issue of fact in the case, and the only one tried. The following facts were fully established by the evidence: (1) That R.S. Gray was the local agent of the company to solicit insurance, examine the property to be insured, receive the application and premium make out the policy and forward it, with the application, to the general office; and, if approved, the policy was executed and became operative. (2) That he, as such agent, made a survey of the property, filled up the blank application in writing and presented it to B.H. Du Bois for his signature; that Du Bois at the time called his attention to the error in the application, in the statement of the title, and told him that the property was owned equally and jointly by himself and brother, that the title was by devise, and that he represented his brother, and was taking the insurance for the benefit of both. Du Bois testified: "That Gray prepared the application. That the conversation referred to was right there, before the application was signed, at that time. I told him the circumstances, exactly. They didn't correspond exactly with the application; and he told me to sign it, and he would accept the application, all right, if I was doing business for my brother, which I said I was,--for my brother and myself." R.S. Gray, the agent who effected the insurance, testified: "That he was the agent of defendant company July 31, 1889, in soliciting and writing applications for insurance. That witness wrote and filled out the application on the barn, hay, and water tanks for plaintiffs. That witness himself wrote in the answers. That Du Bois told witness that the property was willed to him (Du Bois) and his brother, and belonged to him and his brother equally; that he (Du Bois) was transacting business both for himself and brother. That Du Bois did not state to witness that he was the sole and undisputed owner of the property. Du Bois told witness he (Du Bois) was insuring the property for the benefit of himself and brother." "Cr.Int. 14. Was your attention ever called to this application from the time it was made until after the fire? A. Not that I remember of. Don't think it was. Cr.Int. 15. When did you first learn that there was any question about the truth of the answers in the application? A. Never heard of any question about the truth of the answers in the application. Cr.Int. 16. Did you, at the time this application...