Winchell v. Iowa State Ins. Co.
| Decision Date | 13 October 1897 |
| Citation | 72 N.W. 503,103 Iowa 189 |
| Parties | WINCHELL v. IOWA STATE INS. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Poweshiek county; Ben McCoy, Judge.
Action at law to recover the amount of an alleged contract of insurance. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Reversed.McVey & Cheshire, for appellant.
On the 25th day of May, 1894, the plaintiff, who was the keeper of a livery stable, signed and delivered to D. F. White, a soliciting agent of the defendant, a mutual fire insurance company, an application to it for insurance against loss or damage by fire for the term of six years from that date. The insurance asked was for $250 on work horses and mules, and $150 on buggies, carriages, and harness. Attached to the application was a promissory note for the sum of $48, payable on assessment; but not exceeding 15 per centum thereof was collectible in any one year. The application was made subject to the conditions of the policy to be issued and the by-laws and charter of the defendant, and provided that the policy should be sent to the applicant. The application described two barns as the premises in which the property to be insured was kept. On the 1st day of June, 1894, the application, having been received by the defendant, was rejected “for specific amount on each barn, and also for rate of four per cent. on the contents of barn No. 1 and two per cent. on barn No. 2,” and was returned, with the note, to the agent, White. He testifies that he received the two papers on the 4th day of June, and that on the next day he saw the plaintiff, informed him that his application had been rejected, stating the reason for that action, and proposed to increase the note, and meet the requirements of the company; and that the plaintiff said he was about to sell the property to be insured, and would have the purchaser insure it. White further testifies that he then delivered the note to the plaintiff, who destroyed it, but retained the application, on account of the description of property, which it contained, for use in preparing another application. On the 22d day of August, 1894, property covered by the application, of an aggregate value exceeding $400, was destroyed by fire. The plaintiff admits that he was with White several hours on the 5th day of June, and that he saw White again in August, before the fire; but states that he did not inquire for the policy, that the matter of insurance was not referred to on either occasion, and that his note was not returned to him. He also admits that he told White that two young men were to buy the property. Proof of loss was mailed to the defendant on the 20th day of October, 1894. The claim made in the original petition of the plaintiff was that a contract of insurance was effected by the signing and delivery of the application and note. In an amendment to the petition the plaintiff states that the application was made at the solicitation of White, and signed without reading, because the plaintiff was unable to read it without great labor; that White represented that the making of the application and note constituted and was the defendant's contract of insurance from that date; that the plaintiff, not knowing the rules, provisions of policies, or by-laws of the defendant, believed White's statements to be true, and from that time relied thereon as the contract of insurance of the defendant, and because thereof did not procure other insurance; that the defendant, through its agent, knew that the plaintiff believed and relied upon the statement of the agent, and for that reason did not procure other insurance; that the defendant retained the application and note, and did not notify the plaintiff that his application had been rejected until after the destruction of the property, and is now estopped to deny its liability as the insurer of the property. The answer of the defendant denies liability, and pleads various matters, which we need not refer to in detail. At the close of the evidence the defendant moved the court to direct a verdict in its favor, but the motion was overruled. The district court instructed the jury in regard to the elements of an estoppel, and directed it to return a verdict for the defendant if the evidence failed to show that it was estopped from asserting that it did not approve the application. Therefore the controlling question for us to determine is, did the evidence authorize the jury to find that the defendant was estopped to assert that it did not approve the application?
White was a soliciting agent, without power to make contracts for the defendant, and the plaintiff had no sufficient reason for believing that he had such power. The plaintiff had seen White a few times when the application was made, but was not acquainted with him. It does not appear...
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