Vore v. Hawkeye Ins. Co.

• Decision Date: 19 January 1889
• Citation: 41 N.W. 309,76 Iowa 548
• Parties: VORE v. HAWKEYE INS. CO.
• Court: Iowa Supreme Court

76 Iowa 548

41 N.W. 309

VORE

v.HAWKEYE INS. CO.

Supreme Court of Iowa.

Jan. 19, 1889.

Appeal from district court, Harrison county; C. H. LEWIS, Judge.

Action on a policy of insurance. A demurrer to the reply of plaintiff to defendant's answer was sustained, and, plaintiff standing upon his pleading, judgment was rendered against him, from which he appeals.S. H. Cochran, for appellant.

Geo. R. Sanderson, for appellee.

BECK, J.

1. The defendant in an amended answer alleges, in effect, that the action was commenced within 90 days after notice of loss was given; which is forbidden by chapter 211, § 3, Acts 18th Gen. Assem. To this answer plaintiff replied, alleging that the provisions of the statute were eliminated from the policy by the policy itself, which provides that the contract of insurance is wholly embraced in the policy and application of the assured, and that defendant had waived the condition of the statute by receiving proofs of loss, and thereafter declaring that the policy is void. A demurrer to this reply was, we think, rightly sustained. The statute (see Miller's Code, p. 299,) provides “that no action shall be begun within ninety days after notice of such loss has been given. All the provisions of this chapter shall apply to and govern all contracts and policies of insurance contemplated in this chapter, anything in the policy or contract to the contrary notwithstanding.” It will be observed that the provision limiting the time of the commencement of the action does not enter into or affect the contract. It simply limits the remedy requiring the action to be commenced not sooner than 90 days after notice is given. Now, the contract does not control the remedy, as prescribed by the statute, for the reason that the provision as to the remedy is no part of the contract; it is in the nature of a statutory limitation of the action. It is therefore not eliminated by the contract.

2. The receiving of proofs of loss, and claiming that the policy is void, cannot be regarded as a waiver of the statute prescribing the time within which actions shall be brought. It cannot be doubted that defendant could have waived many, if not all, the provisions of the policy, and it may be that it could have waived the provision of the statute as to the time of commencing an action. But the facts alleged in reply, that defendant had received proofs of loss, and claimed that the policy is void, cannot be regarded as acts waiving the conditions...