Zigler v. Phœnix Ins. Co.

• Decision Date: 22 May 1891
• Citation: 82 Iowa 569,48 N.W. 987
• Parties: ZIGLER v. PHŒNIX INS. CO.
• Court: Iowa Supreme Court

82 Iowa 569

48 N.W. 987

ZIGLER

v.PHŒNIX INS. CO.

Supreme Court of Iowa.

May 22, 1891.

Appeal from district court, Jones county; J. H. PRESTON, Judge.

Action in equity to compel defendant to issue a renewal of a certain policy of insurance against loss by fire, and for judgment thereon. Plaintiff alleges in his petition that he was the holder of a policy of insurance upon a stock of merchandise at Oxford Junction against loss by fire in the sum of $2,000, which policy expired August 27, 1888; that about the 17th day of August, 1888, plaintiff informed G. R. Moore, defendant's agent at that place, that the policy would expire on the 27th, and requested a renewal of the same; that defendant, through said agent, agreed, in consideration of $28, to be paid by plaintiff, to continue and renew said policy for one year; that, relying on such promise, plaintiff procured no other insurance, and was at all times ready to perform his promise; that on the 5th day of February, 1889, the property was totally destroyed by fire; that within 30 days thereafter plaintiff notified defendant of the loss; that defendant refused to adjust said loss; and that it was by reason of the negligence of the defendant that plaintiff was not in possession of the renewal. Plaintiff prays that defendant be compelled to issue the renewal, and that plaintiff have judgment for $2,000 and interest. A copy of the policy is attached. The defendant answered, admitting the issuing of the policy, denying the loss, admitting notice of loss, and refusal to adjust, denying liability, and denying that plaintiff is entitled to any relief. For further answer and defense the defendant sets out a provision in the policy that defendant shall not be liable thereon until the premium therefor be actually paid, and that agents of the company have no authority in any manner or by any act to waive, alter, modify, or strike from or change any of the conditions or restrictions of the policy, “except by distinct, specific agreement, clearly expressed and indorsed hereupon, and signed by the agent making it.” Defendant alleges that no premium was paid by plaintiff for a renewal, nor receipt given as provided in the policy, and that the policy had expired long before the loss. Defendant prays that plaintiff's petition be dismissed. The case was tried to the court, and decree entered in favor of the plaintiff for $2,000, with interest. Defendant appeals.C. J. Deacon, for appellant.

Wm. G. Thompson and Sam P. Miles, for appellee.

GIVEN, J.

1. We first inquire whether the defendant did through its agent, G. R. Moore, agree, in consideration of $28, to be paid by plaintiff, to continue said policy by renewal for the term of one year. It is clear that there could be no renewal of the policy until the premium was paid, or that clause in the policy waived which provides that the company shall not be liable by virtue of the policy, or any renewal thereof, until the premium therefor be actually paid. There is no dispute as to what took place concerning the renewal....