Walrod v. Des Moines Fire Ins. Co.
| Decision Date | 13 March 1913 |
| Parties | WALROD v. DES MOINES FIRE INS. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; C. G. Lee, Judge.
Action on insurance policy for loss by fire resulted in a judgment against defendant, from which it appeals. Affirmed.H. W. Byers, of Des Moines, and Kelleher & O'Connor, of Ft. Dodge, for appellant.
Healy, Burnquist & Thomas, of Ft. Dodge, for appellee.
The building was of hollow brick, with shingle roof. The main part was about 30 feet wide, 40 feet long, and 22 feet high, to which was attached an engine room 20 feet by 22 feet and 13 feet high. The latter, with the first floor of the main building, had been constructed for use as a creamery, while the second floor of the main building was finished for occupancy as a dwelling. Use as a creamery continued from 1899, when built, until 1904, when it ceased, and the machinery was removed. In 1905 the building, with an acre of ground on which it stood, was sold by the owner to the plaintiff, who had acquired the farm out of which this acre had been taken. In December, 1909, she procured a policy of insurance in which defendant contracted to indemnify her in event of loss or damage to the building by fire in the sum of $2,000. It burned July 22, 1910, and in this action recovery for the loss is sought.
[1] The defense that the policy was procured by fraud in that plaintiff misrepresented the character and value of the building was fairly submitted to the jury, and the evidence was such that the verdict ought not to be disturbed. Though the original cost of the building in 1899 was about $1,465, and plaintiff paid but $375, there was evidence, though controverted, that it was in fact repaired immediately prior to the fire, and that, owing to the increase in the cost of labor and material, it was then worth $3,000 or more. Moreover, the property might have been regarded more valuable as a part of plaintiff's farm than in connection with a detached acre.
[2] A family had occupied the second story a portion of the time since acquired by plaintiff, and Waters, who was a single man and an employé of plaintiff, was in actual occupancy at the time the policy was issued, as well as when the building was destroyed by fire, though then temporarily absent. The defendant's agent had not been in the building, but had seen it with windows and doors below covered with boards nailed on the outside, and the outside stairway to the second story, and was informed, at the time the application was made, that the occupancy was by Waters. In view of this state of the record, it is manifest that the issue as to whether the value and character of the building as a dwelling had been misrepresented by plaintiff in her application with the design of deceiving the insurer was for the jury to determine, and there was no error in so ruling.
[3][4][5] 2. The building was represented as a dwelling. The upper story had been constructed and partitioned into six rooms for that purpose, and had never been occupied otherwise. The first story, with the wing, was used several years as a creamery, but such use had been abandoned over four years prior to the issuance of the policy; and, though not remodeled, there appears to have been no intention to occupy it again as a creamery. That it was not then occupied was as apparent to the agent as any one, for the doors and windows had been covered with boards nailed over them, and he must have understood that the occupancy of Waters was of the upper story and of a character usual to bachelors in his situation. The agent's knowledge was imputed to the company (Gurnett v. Insurance Co., 124 Iowa, 547, 100 N. W. 542); and there was little room for deception as to the...
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