Woodard v. Sec. Ins. Co. of New Haven, Conn.

• Decision Date: 16 February 1926
• Docket Number: No. 37073.,37073.
• Citation: Woodard v. Sec. Ins. Co. of New Haven, Conn., 201 Iowa 378, 207 N.W. 351 (Iowa 1926)
• Parties: WOODARD v. SECURITY INS. CO. OF NEW HAVEN, CONN.
• Court: Iowa Supreme Court

201 Iowa 378

207 N.W. 351

WOODARD

v.SECURITY INS. CO. OF NEW HAVEN, CONN.

No. 37073.

Supreme Court of Iowa.

Feb. 16, 1926.

Appeal from District Court, Page County; Earl Peters, Judge.

Action at law on a fire insurance policy. Plaintiff recovered, and defendant appeals. Reversed.Stipe, Davidson & Davidson, of Clarinda, and Stout, Rose, Wells & Martin, of Omaha, Neb., for appellant.

Ferguson, Barnes & Ferguson, of Shenandoah, for appellee.

MORLING, J.

The only controversy in this case is over failure to give proofs of loss. It is apparently assumed by both parties that the policy is a Nebraska contract, and it purports to be a uniform standard Nebraska farm policy approved by the Nebraska state insurance board. The insured property consisted of a barn and other buildings in Nebraska. The policy was issued in 1916 to McDonnell. Approvals dated May 15, 1918, of assignment by McDonnell to Zahner, and December 19, 1918, of assignment by Zahner to plaintiff, were secured through the local agent, Riley, at Fairbury, Neb. It does not appear where McDonnell or Zahner resided, or whether or not plaintiff was acquainted with them. Plaintiff apparently lives at Shenandoah, Iowa. The barn was totally destroyed in August, 1919. Plaintiff had never received the policy. After the fire, he inquired at the bank at which his deal for the property was closed, and was informed that the policy had terminated, and that he had no insurance. He believed the policy was left at the bank. He says that, when he made the inquiries, he did not think that the policy had been terminated, but for awhile after the inquiries he thought he had no insurance. He says that when he purchased the property of Zahner it was agreed that Zahner should assign the insurance, but he never asked Zahner for the policy. Plaintiff made no inquiry of Zahner. In the fall of 1921 plaintiff met McDonnell in Nebraska. McDonnell then gave plaintiff the name of defendant's local agent, Riley, to whom plaintiff wrote as soon as he got home. On November 12, 1921, Riley mailed the policy to plaintiff. Riley testifies that he received the policy from McDonnell, and, after it was assigned to plaintiff, returned it to McDonnell, not knowing either Zahner or plaintiff. In his letter sending the policy to plaintiff Riley stated:

“I have sent your letter demanding payment to the insurance company in this same mail. I trust this will be taken care of in some way that will be satisfactory to you.”

On November 19, 1921, plaintiff wrote to defendant's general agents at Rockford, Ill., that he was the owner of the policy, stating its number, to whom issued, and referring to the assignments. In this letter he stated that on or about August, 1919, the barn was completely burned, and--

“I was sure that I had insurance on this barn, but I made every effort to find the policy, and was informed by Mr. Parker of the Citizens' Bank at Woodlake, Neb., who at one time had to do with the ownership of the property, that the policy had expired, and that there was no insurance covering the barn.

As a matter of fact, it develops that the policy was in the hands of your agent, R. E. Riley, of Fairbury, Neb., and had never been returned after procuring the approval of the company to the assignment in my favor.

I went ahead and built a new barn at a cost of $1,500, and I only learned a short while ago that the policy was in force and where it could be found, and the same has just been delivered to me by your agent, R. E. Riley, of Fairbury, Neb.

I am sure that it will not be necessary to take any legal action to make collection under this policy, and I beg to inquire what steps I shall take to prove up the claim and make recovery.

Mr. Riley tells me that he has also written you concerning settlement for this loss.”

Under date of December 5, 1921, the defendant wrote plaintiff:

“We are to-day in receipt of copy of your letter of recent date directed to the western department office of the company at Rockford, Ill., with reference to a purported claim under policy No. 76603, and, in replying thereto, we beg to refer you to the printed condition on both the front and back of your policy with reference to a claim, if you have one, against the company.”

The record does not show that anything more was done until the petition was filed in this suit May 26, 1922. The plaintiff pleads the statutes of Nebraska as exempting him from the necessity of furnishing proofs of loss, and also pleads excuse and waiver based on the facts which have been related. Defendant pleads the provisions of the policy requiring notice and proofs of loss and failure to comply with them. The policy and indorsements are printed on the four pages of a double sheet of large, legal or foolscap size paper. The front and back of the policy do not refer to proofs of loss. On the second page (the back of the first sheet) are numerous conditions, among them one requiring that, in case of loss, assured shall within 15 days give the company at its office in Rockford, Ill., written notice thereof, and shall within 60 days from the date of the loss render to such office a particular account of the loss, signed and sworn to by the assured, and by the assured only (except in case of death, and then by the legal representatives), stating the date and circumstances of the same, exact nature of the title, by whom and for what purpose the building was occupied, and all incumbrances. It also requires the furnishing of an itemized statement, estimate of the buildings by a builder, certificate of two neighbors and of nearest magistrate, and provides “all claims for any loss or damage shall be forfeited by failure to furnish proofs of such loss or damage within the time and in the manner above provided.” There were also provisions for exhibiting the remains, submitting to examination, appraisement, etc.

[1][2] I. The appellant's argument contains no statement of error, and appellee asks for an affirmance upon that ground. The only exception is to the judgment. Appellant sets out its propositions of law, and argues them. They are argued by the appellee. In the argument in reply appellant states that it relies upon the error that the judgment is contrary to law and not sustained by sufficient evidence. Our rules are designed to secure an orderly and fair presentation of the case, and in such form that opposing counsel and the court may know readily and precisely the questions presented. The rules must be observed. No further argument after the amendment by the reply has been asked for. The court is able to readily ascertain the contentions of both parties. We think we ought not to affirm for the delay in counsel making the one formal assignment of error.

[3][4] II. It is urged that we should assume the law in Nebraska to be the same as provided by sections 1742, 1744, of the Code of 1897 (Code 1924, §§ 8978, 8986), and that the letters mentioned waived compliance with the provisions of those sections. The sections in substance are that in an action on the policy it shall only be necessary for the assured to prove the loss, and that he has given written notice accompanied by the prescribed affidavit within 60 days. Without deciding whether in a particular case we might presume another state to have the same statute, we have to say that in this case each party has pleaded at considerable length the statutes of Nebraska. Neither has pleaded a statute such as ours as being in force in that state. The presumption exists only in the absence of pleading and proof to the contrary. It is pleaded by defendant, and admitted, that by one of the Nebraska statutes no fire insurance company may issue a policy other than on a form prescribed by the insurance board as nearly as practicable in the New York standard form. The policy, as has been noted, purports to be a standard form, and approved by the state insurance board. We think that, if there were in Nebraska statutes similar to those of Iowa relating to proofs of loss, they would have been pleaded. In any event on these pleadings, and in view of the uniform policy statute of Nebraska, we cannot presume that another statute of that state, not pleaded as vital to the case as that in question, and contrary in part of the approved standard policy form, exists.

[5][6][7] III. Plaintiff contends that his ignorance of the existence and whereabouts of the policy under the circumstances shown excused him from complying with its conditions relating to proofs of loss. It is generally held that delay beyond the prescribed time in giving notice and proofs is excusable, if under all the circumstances the insured acts with reasonable diligence, and his failure to comply with the requirements of the policy is not due to his fault or neglect. Munz v. Standard Life & Accident Co., 72 P. 182, 26 Utah, 69, 62 L. R. A. 485, 99 Am. St. Rep. 830;Solomon v. Continental Fire Ins. Co., 55 N. E. 279, 160 N. Y. 595, 46 L. R. A. 682, 73 Am. St. Rep. 707;Woodmen's Accident Association v. Byers, 87 N. W. 546, 62 Neb. 673, 55 L. R. A. 291, 89 Am. St. Rep. 777;Concordia Fire Ins. Co. v. Waterford, 224 S. W. 953, 145 Ark. 420, 13 A. L. R. 1387;Chapin v. Ocean Accident Co., 147 N. W. 465, 96 Neb. 213, 52 L. R. A. (N. S.) 227;Simmons v. Western Travelers' Accident Association, 112 N. W. 365, 79 Neb. 20;Bard v. Fireman's Ins. Co., 81 A. 870, 108 Me. 506, 14 R. C. L. 1333. Plaintiff's evidence is not altogether satisfactory to show absence of negligence. No reason is given for not obtaining the policy when he bought the land or not inquiring earlier of McDonnell or for not inquiring at all of Zahner. But, assuming that the question of diligence would on the record be for the jury or the court as the trier of fact, the excuse would only go to the delay. It would not of itself excuse the entire omission to furnish proofs. It would not absolve the plaintiff altogether from the duty of complying with the requirements of the policy. He...