Wicke v. Iowa State Ins. Co.
| Decision Date | 27 January 1894 |
| Parties | CATHERINE WICKE, Appellant, v. IOWA STATE INSURANCE COMPANY |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. J. H. PRESTON, Judge.
ACTION on two policies of insurance. Verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
Craig McCrary & Craig, Smith & Clemans and McVey & Cheshire for appellant.
Rickel & Crocker and Davis & Voris for appellee.
I.
This is an action against the defendant, a mutual insurance company upon two policies of insurance issued by it. Policy number 34067 was issued to Zabortskey & Loder, on November 12, 1888 for two thousand dollars, on a stock of goods, store furniture, etc., situated in a certain building in Fairfax, Iowa. Policy number 32293 was issued to Joseph Zabortskey for one thousand, five hundred dollars, on the building which contained said goods, and which was used as a dwelling house and store room. These policies were transferred until finally plaintiff became the owner of them. September 10, 1890, the building and its contents were destroyed by fire. It is alleged that, after the fire, the company was duly notified of the loss, and proofs of loss duly made, as required by the policies. Judgment is asked for three thousand, five hundred and fifty dollars, with interest. Attached to the petition is a copy of the policy, the application and by-laws of the defendant. The defenses are, as to the first policy: First. Other insurance upon the property, which was concealed from the defendant. Second. A violation of the terms of the policy, in permitting the building in which the insured property was, to be used for purposes other than those set out in the application, and which use increased the risk. Third. Allowing gasoline to be used upon the premises, in violation of the terms of the policy. Fourth. That proofs of loss were not furnished, according to the terms of the policy. As to policy number 32293, the defenses are: First. Change of occupancy of the building, contrary to provisions of the policy. Second. Use of gasoline in violation of the terms of the policy. Third. Execution of a mortgage upon the insured building, in violation of terms of the policy. In a reply, plaintiff charges that defendant, with full knowledge of all the matters now relied upon as a defense, received and retains the premium notes, and has received and retained assessments provided for by its by-laws, and has thereby waived its right to insist upon such defenses; that the change of use in the building was a mere casual one, which did not increase the risk, and was not the cause of the fire; that gasoline was used only for testing gasoline stoves as it is ordinarily used in the business of selling such stoves, and that such use did not violate the terms of the policy; that the mortgage referred to was executed, and on December 29, 1888, indexed and filed for record, and recorded, as provided by law, and was notice to defendant, who thereafter made an annual assessment upon the then holder of the policy, and owner of the property, which he paid, and that same, as well as the premium note, is still retained by the defendant, which facts are pleaded as a waiver of defendant's right to avoid the policy because of the giving of the mortgage. It is further alleged that, after the defendant had full knowledge of all the matters pleaded by it, it demanded of plaintiff further proofs of loss, and compelled the parties to submit to an examination under oath touching the loss, whereby defendant has waived its right to insist upon its defenses. The defendant denies all the allegations of the reply.
II. Appellee files a motion to strike the amended assignment of errors, the additional reply, and the second amendment to the abstract. All these motions must be overruled, as no notice of their filing was given to appellant. S.Ct. Rule, section 52.
III. A motion is made to strike the evidence, because the same has not been preserved by a proper bill of exceptions. We think that the motion is not well taken, but, in view of what is hereafter said, we need not discuss the question further, or cite authorities in support of our conclusion.
IV. It is insisted that there is nothing in the abstract stating that it is an abstract of all the evidence. We have examined it, as well as the amendments thereto, with care, and find nothing therein indicating that it is claimed to be an abstract of all of the evidence. The only reference thereto is in the bill of exceptions, wherein it is stated: "And the above being all the evidence given, received, or offered on the trial of said cause," etc. There is no doubt that the bill of exceptions contained all of the evidence. But such a statement in the bill of exceptions does not even tend to show that the abstract is an abstract of all of the evidence. We have held that such a statement in the bill of exceptions is not sufficient to show that we have an abstract of all of the evidence before us. Rice v. Plymouth Co., 53 Iowa 635, 6 N.W. 23. With this condition of the record, we are limited to a consideration of such questions only as may be determined without reference to the evidence.
V. It is insisted that the court erred in giving the seventh instruction to the jury. It is as follows: "It having been shown by the undisputed evidence that after the mortgage referred to, covering the building insured under policy number 32293, was executed and acknowledged, and duly recorded and indexed in the recorder's office of Linn county, Iowa the defendant received and accepted from the assured payment of a premium on said policy, which defendant has since retained, the defendant is deemed to have thereby waived the forfeiture of said policy by reason of said mortgage, and you will not consider said mortgage as constituting a defense to said policy, but will find for the plaintiff on that defense." In the application upon which the policy was issued, the assured was asked, "(12) Is...
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