State Ins. Co. v. Waterhouse

• Decision Date: 28 October 1889
• Citation: State Ins. Co. v. Waterhouse, 78 Iowa 674, 43 N.W. 611 (Iowa 1889)
• Parties: STATE INS. CO. v. WATERHOUSE ET AL.
• Court: Iowa Supreme Court

78 Iowa 674

43 N.W. 611

STATE INS. CO.

v.WATERHOUSE ET AL.

Supreme Court of Iowa.

Oct. 28, 1889.

Appeal from superior court of Keokuk; H. BANK, Judge

This is an action in equity by which the plaintiff seeks to vacate and annul a judgment rendered against it in the court below at the suit of the defendant Thomas Waterhouse. Before this action was commenced an execution had been issued upon the judgment, and an injunction was issued restraining the sheriff from proceeding to collect the same. An answer and a motion to dissolve the injunction were filed, and upon a hearing on the motion the court dissolved the injunction. Plaintiff appeals.Cummins & Wright and Craig, McCreary, & Craig, for appellant.

John P. Hornish and James H. Anderson, for appellees.

ROTHROCK, J.

1. The plaintiff is a fire insurance company, organized as a corporation under the laws of this state. On the 6th day of April, 1885, the defendant Waterhouse was the owner of a one-story frame building in which he kept a general store. On that day one Farel took an application from Waterhouse for a policy of insurance in the plaintiff company on the said building and stock of goods. The application was forwarded by Farel to the insurance company, and was received at the office of the company at the city of Des Moines on the 10th day of April, 1885. The application provided that no liability of the company should attach until the insurance should be approved by the secretary of the company. On the 13th day of April, 1885, the risk was declined by the company, and the application was returned to Farel, who after wards returned it to Waterhouse, together with a promissory note which Waterhouse had given for the premium for the insurance. The rate of insurance was fixed by the application at 1 1/4 per cent., and the risk was refused because the usual and customary rate for risks of that character was 2 per cent. The store and stock of goods were consumed by fire on the 14th day of April, 1885, as appears from the judgment which the plaintiff seeks to vacate. There is some doubt about the correctness of this date, but it is immaterial, as it appears, without conflict in the evidence, that the officer of the plaintiff whose business it was to pass upon and accept or reject the risk had no knowledge that the property was destroyed when the risk was rejected. On the 14th day of March, 1887, nearly two years after the loss by fire, Waterhouse commenced an action in the court below to recover the amount named in the application, and on the 7th day of April, 1887, a default was entered against the insurance company, and on the next day a judgment by default was rendered against the company for $2,210. On the 15th day of the same month this action was commenced to vacate the judgment upon the ground that it is absolutely void, because there was no service of an original notice of the action upon the insurance company.

The facts with regard to the original notice are as follows: The man Farel who took the application for the insurance was not an agent of the company for any purpose. He was a mere volunteer. No attempt was made to serve an original notice upon him. Service was had upon one H. B. Blood, in the city of Keokuk. At that time Blood was what is known as a recording agent of the company at Keokuk. He had nothing to do with the business of the company except to write policies, and give attention to such policies as he had issued, and to look after the interests of the company in connection with the property insured by him. The original notice and the return thereon are in proper form, and the only question in connection therewith is, was the service upon Blood binding on the company? It is provided by section 2613 of the Code that “when a corporation, company, or individual has, for the transaction of any business, an office or agency in any county other than that...