Citation Numbers: 180 Iowa 1015
Judges: Gaynor, Preston, Stevens, Weaver
Filed Date: 9/22/1917
Status: Precedential
Modified Date: 7/24/2022
The companies having each for itself denied liability for such loss, this action was begun in equity, making both insurers defendants thereto, though asking final recovery only as against the one which the court might find bound in equity and good conscience to perform its contract of
Answering the petition, the American Company admitted the issuance of the policy sued upon, but denied that there was any mistake made in the writing, and alleges that the policy Avas forfeited by the act of the insured in taking out additional insurance in the Security Company, and by false representations to the American Company, at the time the policy Avas issued, that G. H. Magarrell Avas the owner of the property insured.
The separate ansAver of the Security Company admits the issuance of its policy mentioned in the petition, but says that it was issued to take effect only upon expiration of the policy in the American Comjjany, and that, as such expiration did not take place until July 13, 1915, said policy had not come into force and no risk had attached under said contract at the time the fire occurred. It further pleads that one of the terms of its policy makes the same void if, at the time of its issuance, the insured had or should thereafter procure other insurance, and that such provision avus violated and the insurance avoided by the fact that at that date the insured had other valid insurance, as shoAvn by the American policy.
The issues were tried to the court as in equity, and, upon the proved and admitted facts, the court denied the plaintiff’s prayer for reformation of the American Company’s policy, but found that such policy Avas void and of no effect, because of the untrue representations of G. H. Magarrell that he was the OAvner of the property, and, as said policy Avas never delivered to plaintiff and remained at all times in the possession of the company’s agents, said
We have, then, to inquire whether, upon the record as made, the court should have found against the validity ot the Security policy. While the plaintiff has appealed from that part of the decree denying her any relief against the American Company, she expresses herself as willing to-waive her exception in this respect if her recovery against the Security Company is permitted to stand, and asks that her appeal be' considered only in the event that such recovery cannot be sustained.
Were it necessary to the proper adjudication of the rights and liabilities of the Security Company to first determine whether plaintiff was entitled to a reformation of the American policy, we are not at all convinced that she would not be entitled to such relief. We are inclined, however, to the view that, even assuming the validity of the American policy up to July 6, 1915, and assuming also the date of its expiration, as expressed in the contract, to be July 13, 1915, it does not necessarily follow that, under the admitted facts, it would have the effect to avoid the Security policy issued to take effect July 6, 1915. Both the insurer and the insured, under this last policy, were attempting to effect an insurance which was to succeed, in order of time, the American policy. Both believed and understood that the American policy expired July 6, 1915. Neither party intended to effect concurrent or additional or double insurance, even for the matter of the short period between' July 6th and July 13th, and we see no good reason and are aware of no sound principle to prevent the court’s carrying- that mutual agreement and understanding into
Whether we proceed upon this theory or upon that adopted by the trial court, the same result is obtained — the affirmance of the recovery in plaintiff’s favor. Such being, the case, we think there is no occasion to further consider or review the points made and authorities cited by counsel. The decree below is right, and it is — Affirmed.