Zimmerman v. Home Ins. Co. of N.Y.

• Decision Date: 27 May 1889
• Citation: Zimmerman v. Home Ins. Co. of N.Y., 77 Iowa 685, 42 N.W. 462 (Iowa 1889)
• Parties: ZIMMERMAN v. HOME INS. CO. OF NEW YORK.
• Court: Iowa Supreme Court

77 Iowa 685

42 N.W. 462

ZIMMERMAN

v.HOME INS. CO. OF NEW YORK.

Supreme Court of Iowa.

May 27, 1889.

Appeal from district court, Delaware county; D. J. LINEHAN, Judge.

Action on a policy of insurance. There was a judgment for the defendant, and the plaintiff appeals.J. H. Trewin and J. H. Shields, for appellant.

Cole, McVey & Clark and Bronson, Carr & Le Roy, for appellee.

GRANGER, J.

On the 22d of December, 1886, the defendant company issued to the plaintiff its policy of insurance for $1,500 on a certain building in Earlville. The building was, on the 11th of May, 1887, totally destroyed by fire. The policy by its terms permitted $1,500 of other insurance, and also provided that “if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, * * * this policy shall be void.” At the time of applying for the policy in defendant's company, the plaintiff held a policy in the Merchants' & Bankers' Company for $2,000, and one in the Hecla Insurance Company of Madison, Wis., for $1,500. The policy in the Hecla Insurance Company would expire, by limitation, February 9, 1887, and that of the Merchants' & Bankers', November 24, 1891. At that time the plaintiff undertook to cancel the policy in the Merchants' & Bankers' Company, and for that purpose wrote across the policy the words, “Please cancel this policy,” signed it, and sent it to the company. Letters were also written to have the policy canceled. It was not, however, canceled, and the company continued to carry the risk. The last part of January, 1887, and before the expiration of the policy in the Hecla Insurance Company, the plaintiff took an additional policy of insurance for $1,500 in the Council Bluffs Insurance Company.

1. The defendant company resists payment of the loss for the alleged reason that the taking of this additional insurance was a violation of the contract, and avoided the policy. The appellant's claim is that the additional insurance was with notice to the company, and with its consent. The business of appellant with the defendant company was done with and through one J. H. Fuller, at Earlville, both as to the original taking of the insurance and the consent for additional insurance, as claimed by appellant. On the face of the policy is the following provision: “The managers of the company at Chicago are alone authorized to make any change or grant any privileges under this policy, and any indorsement or agreement varying the contract made by any agent or sub-agent of the company is void.” On the policy is indorsed the words: “Ducat and Lyon, Managers, Chicago, Ill.” At the close of the plaintiff's testimony the court, on motion of defendant, orally instructed the jury to return a verdict for it, which was done. Some further errors appear by assignments, but they are all embraced in the one query: Did the court err in this instruction to the jury? The theory of the appellant is that there was testimony on which the court should have submitted to the jury the question of whether or not the company had been notified of the additional insurance, and consented thereto.

The plaintiff was not a witness at the trial, and R. Zimmerman, her husband, seems to have done all the business for her, and was a witness, and it was this witness that gave the notice and obtained the consent to additional insurance, if it was obtained. The abstract of appellant shows the testimony of R. Zimmerman on this subject to be as follows: “I had a conversation with Mr. Fuller on or about the 9th or 10th of March, 1887. I said to him: ‘Shall I notify the companies, or will you?’ I have taken insurance in the Council Bluffs. The Merchants' & Bankers' he knew all about long before. I notified him I had $1,500 in the Council Bluffs and $2,000 in the Merchants' & Bankers'. I have known Mr. Fuller about 19 years. He is justice of the peace, and in the insurance business. He represents the New York Home and Merchants' & Bankers'. He was agent for them when I dealt with him. Fuller had the agency for the Home for 12 or 15 years. He did all the business with the policy-holders there for the Home Insurance Company. The policy sued on was obtained by me from Mr. Fuller. At the time I made application for the Home policy I had $1,500 other insurance in the Hecla Insurance Company, and $2,000 in the Merchants' & Bankers', and told Fuller all about both of them. Cross-Examination. I went to Mr. Fuller's office about the 9th of March. John Young was there. I told Fuller about the Council Bluffs and the Merchants' & Bankers' policy. I was going to drop the Merchants' & Bankers', because I had to pay too much assessments. I had the Home, and told Mr. Fuller I got a policy in the Merchants' & Bankers'. I had $1,500 insurance in the Hecla, also, when I got the Home policy, and Fuller knew all about them. At the time I got the Home policy, in December, I did not suppose the Merchants' & Bankers' was canceled. It was never canceled. Redirect. I sent in the Merchants' & Bankers' policy to be canceled about the 15th of December, and got a letter back in 3 or 4 days, that they would not cancel it; and I then, the same day, had a further talk with Mr. Fuller, and showed him a letter. The letter stated that they would not cancel unless I would pay short rates. Mr. Fuller then wrote a letter to the company for me, and said in it that I would pay the full year...