Citation Numbers: 189 Iowa 900
Judges: Evans, Preston, Salinger, Weaver
Filed Date: 10/2/1920
Status: Precedential
Modified Date: 7/24/2022
“I satisfied myself, when I looked in there, that there was an average amount of household goods for the amount of the policy.”
A near neighbor testified that the fire which burned the house insured by plaintiff did not start until 2 o’clock in the morning of July 5th. The house smelled of gasoline at 10 o’clock of that night. Plaintiff testified he poured gaso
On the issue of this alleged -joint incendiarism, defendant made proferís, to which objection was sustained. Some of these rulings were so clearly right that we will not lengthen this opinion by setting them out.
As to other proférts: A witness said that he saAv someone driving away from or from the direction of the house, at about 10 o’clock of the night of the fire. It would seem that pr.ofert to show that it was Hammersley, ivas rejected. Defendant offered to prove by the witness J. A. Underwood that he knows Hammersley,, knew when he moved away to Rutledge, and that he didn’t take very much with him; took a bed and a stove and a few other small articles. Offered to prove, further, that Hammersley did not have anywhere near $800 worth of. furniture; that all he had ivas some cheap furniture, such as is used by fishermen and clammers. Defendant also offered to prove that gasoline ivas not a proper ingredient to use to thin paint; and that, if it had been used, the smell would' have disappeared in three hours; and that it could not be smelled in 20 to 25 feet away.
We hold that all these rejected offers dealt with relevant and proper circumstantial evidence, and that the objections to each of these proferís should have been overruled.
“If, at the time said policy ivas issued by the defendant company or its agents, said company, or its agents solicit*903 ing said insurance or taking the application therefor, if any, was informed by plaintiff of the true character and extent of plaintiff’s interest in said insured property, and the true circumstances of his title and ownership thereof, and of the character of the lien thereon, then the defendant would be held to have waived the above-mentioned provisions of the policy.”
We hold that the charge is not vulnerable to the attack that it assumes the existence of a matter in dispute.
III. Another complaint of this instruction is that there was no evidence upon which to give it; that there is no testimony that Lundgren had any authority to represent defendant. The same point was raised by the overruled motion to direct verdict for defendant.
The appellee says there was sufficient evidence to take the issue of agency to the jury, and claims this is so because there was the following evidence: Cresswell & Grube were the recording agents of defendant in Ottumwa. Lundgren solicited this policy, collected the premium, turned it to Cresswell & Grube; they acted on his knowledge, issued the policy, delivered it to Lundgren, and he delivered it to Pick-ens, and Lundgren was paid for his services. Appellee says Lundgren is shown to be the subagent, solicitor; or clerk of defendant agency Cresswell & Grube, by his own testimony, which shows that he left a memorandum on .the table at the office of Cresswell & Grube, received the premium for the policy from Pickens, paid it to Cresswell & Grube, received
“I was working for Cresswell & Grube, and not for any insurance company they represented, and particularly the Milwaukee Mechanics Insurance Company.”
Statute and case law combine against our sustaining the contention of the appellant, and prohibit us from holding that, as matter of law, there is no evidence that Lundgren was such agent as that his knowledge of the state of the title, etc., bound the appellant. Section 1749 of the Code provides as follows:
“Any person who shall hereafter solicit insurance or procure application therefor shall be held to be the soliciting agent of the insurance company or association issuing a policy on such application or on a renewal thereof, anything in the application, policy or contract to the contrary notwithstanding.”
A statute in substance like this one was construed in Bennett v. Council Bluffs Ins. Co., 70 Iowa 600. There it was held that, by reason of this statute, if an accredited agent of an insurance company sent his clerk to solicit insurance, so much was not a prohibited delegation of power, whatever may be said of delegating to such a clerk the power to pass upon the application. In the Bennett case, as here, the delegation of power and the action of the clerk were not known to the insurance company. And this court said:
“But suppose the application,, so filled up and signed, is presented to the company, and it issues a policy thereon, and receives the premium. Is it not bound thereby, even if it does not know who procured the application? We think a policy so issued would be a valid contract of insurance. If material, the company was bound to know who the agent was, and without doubt could be compelled to pay the loss, if one occurred. The statute should be construed, we*905 think, as embracing any case where a policy has been issued upon an application; and whoever procures'such application miist be regarded as the soliciting agent of the company issuing the policy.1”
It is further said that, at any rate, the accredited agent who issued the policy binds the insurer with his knowledge, and that, in the Bennett case, the accredited agent necessarily knew, since he had sent his clerk to procure an application, that the application returned had been solicited by 'the clerk. And finally, it is said that the defendant company was bound to know who procured the application,, because its accredited agent (as here) had that knowledge when he issued the policy, and the defendant company was charged with knowledge obtained by this clerk, while soliciting and obtaining the application. The Bennett case has approval in Dodge v. Grain Shippers Mut. F. Ins. Co., 176 Iowa 316, 330. Cases to like effect also have approval there, to wit: London & L. Ins. Co. v. Gerteisen, 106 Ky. 815 (51 S. W. 617), and Indiana Ins. Co. v. Hartwell, 123 Ind. 177 (24 N. E. 100).
The court did not err in submitting as a question of fact whether Lundgren was such agent as that knowledge acquired by him bound the defendant.
For the reasons stated in Division I, the judgment appealed from must be — Reversed.