Taylor v. State Ins. Co.

• Decision Date: 25 May 1896
• Citation: 67 N.W. 577,98 Iowa 521
• Parties: TAYLOR v. STATE INS. CO.
• Court: Iowa Supreme Court

98 Iowa 521

67 N.W. 577

TAYLOR

v.STATE INS. CO.

Supreme Court of Iowa.

May 25, 1896.

Appeal from district court, Tama county; John R. Caldwell, Judge.

Action at law upon a policy of insurance to recover for a loss alleged to have been covered by it. There was a trial on the merits which resulted in a verdict for the plaintiff, by direction of the court, and a judgment for the amount of the verdict. The defendant appeals. Reversed.O. B. Ayres and J. W. Willett, for appellant.

Struble & Stiger, for appellee.

ROBINSON, J.

On the 10th day of April, 1893, the defendant issued to the plaintiff a policy of insurance against loss or damage by fire to the amount of $3,000, of which $1,500 were on his brick building, and $300 on his post-office and office furniture and appurtenances. The remainder was on property described as follows: “His type, cases, stands, plates, imposing stones, rollers, printing papers, and all other materials not more hazardous, usual to a country printing office, including one steam engine and boiler contained therein.” The policy contained the following provisions: “No officer, agent, or representative of this company shall be held to have waived any of the terms or conditions of this policy unless such waiver shall be indorsed hereon in writing.” And, “if, without written consent hereon, * * * there is any prior or subsequent insurance, valid or invalid, * * * then * * * this policy shall be void.” Also, “this policy is made and accepted upon the above express conditions, and no part of this contract can be waived except in writing, signed by the secretary of the company.” The contract of insurance had been by the plaintiff with a local recording agent of the defendant, named Bowen. On the day of the fire, or, at latest, the next day, the plaintiff discovered that the word “presses” was not used in the description of the property insured, and spoke to Bowen in regard to it. Bowen said it was omitted by mistake, took the policy to his office, inserted the word “presses” after the word “his,” making the description read “on his presses, type,” etc., and returned the policy to the plaintiff. On the 30th day of March, 1894, during the term of the policy, the property insured, with some exceptions of minor importance, was destroyed by fire. In due time, the plaintiff sent to the defendant a notice, accompanied by an affidavit, showing the loss. The defendant having failed to pay it, this action was commenced to enforce payment. The answer of the defendant contains a general denial of every allegation of the petition not admitted, and pleads as affirmative defenses that the policy it issued was altered without authority, by inserting the word “presses” in the description of the property insured, and that, after the policy was issued, additional insurance in the sum of $1,000 was obtained of the Farmers' Insurance Company of Cedar Rapids, without the written consent of the defendant. The plaintiff, in his reply, admits the alteration in the policy, but avers that it was made to express the contract actually entered into by the parties. He also admits the additional insurance, but alleges that it was taken by and with the consent of the defendant; that it had full knowledge of it, but did not object to it; and that it waived the conditions of the policy respecting subsequent insurance. The verdict and judgment were for $3,075, besides costs.

1. The question of chief importance in this case is, what were the powers and duties of the agent Bowen? It appears that he had an agreement in writing with the defendant, which was not, however, introduced in evidence; hence his authority and duty to act for the defendant must be determined from what he says in regard to it, and the policy in suit. Whatever his powers were with respect to completed contracts of insurance, it is clear that he was duly authorized to make contracts of insurance, and to issue policies, in the name of the defendant, on property like that in controversy. His right to have included the presses in the policy when it was written is not even questioned. It is shown without conflict in the evidence that he and the plaintiff agreed and intended to include the presses in the policy, and that they were only omitted by mistake. That being true, the writing did not express the real agreement; and, since Bowen had the power to express that agreement in writing when it was made, we are of the opinion that the power to do so was not ended by a delivery of the defective policy, but that he might correct it while his agency continued. The fact that the property was destroyed before the correction was made did not affect his right to perfect the policy. City of Davenport v. Peoria Marine & Fire Ins. Co., 17 Iowa, 276;Hubbard v. Insurance Co., 33 Iowa, 325. What was done was not a waiver of any condition of the policy, but a correction, by the duly-authorized agent of the defendant, to express the true contract. The evidence tended to show that the plaintiff and Bowen acted in perfect good faith in making it. Since the policy was so corrected, there was no occasion to ask a court of equity to reform it, and it may be treated as though issued in its present form. The authorities cited by the appellant on this branch of the case relate chiefly to actions on policies which contained mistakes which had not been corrected, and are not, therefore, applicable to the question under consideration.

2. Bowen was the agent of both the defendant and the Farmers' Insurance Company of Cedar Rapids. After the policy in suit was issued, the plaintiff applied to Bowen for additional insurance in the sum of $1,000, and he issued a policy of that company for that amount. He knew of, and, as we understand the record, at the time had in mind, the policy issued by the defendant; but, so far as is shown, he did not report the additional insurance to the defendant, and written consent therefor was not indorsed on its policy. Unless...