Behrens v. Germania Fire Ins.

Servers, J. í nrsuavaluation as" fraudulent' intent. I. The court instructed the jury as follows: “ As to the defense stated in the third instruction, you are informed that, if you find that the preponderance credible evidence establishes that plaintiff, in getting the policy in suit, made a false statement ag j-0 stock purchased and added to that already possessed, or intentionally deceived the agent, Deggindorf, as to the value of his property, and thereby obtained the policy in suit, the defendant is entitled to a verdict. But a mere honest mistake as to value is not sufficient to invalidate the policy, and thereby defeat plaintiff’s action.” . No exception is taken to this instruction, and it therefore must be regarded as the law of the case. The jury found specially that the plaintiff represented the value of the property at the time he obtained the insurance to be two thousand dollars, and that its actual cash value at that time was only twelve hundred and forty dollars, and that the plaintiff at the time of procuring the policy “ did not knowingly, and wfith intent to decieve, misrepresent the value of the property” insured. It is insisted that this finding is contrary to the evidence. We do not think this is so. We have read the evidence carefully, and are unable to reach the conclusion that the plaintiff purposely and with intent to deceive made a false statement of the value of the property. The ¡aoliey contains this provision: The “ amount of such loss or damage is to be estimated according to the actual cash value at the time of the loss.” Under the terms of the policy, the plaintiff could not possibly gain anything by the over-valuation. The evidence, therefore, of a fraudulent intent should at least be of a satisfying character to warrant us in disturbing the verdict. We cannot say that the evidence fails to sustain the sjiecial finding. [22] 2.-rover-valuation: •featrecovery. II. Substantially, it is insisted that the ovei’-valuation is so great that, conceding that there was no fraudulent intent, there cannot be a recovery. But, as we have seen, ' ; the defendant’s liability is not to be measured by p¡ie valuation at the time the insurance was effected, but by the actual cash value of the property at the time it was destroyed. Over-valuation by owners of property is a usual occurrence, and made honestly. That is, the owner will place a higher value on his property than his neighbor, and, we doubt not, this is well understood by insurance companies, and we doubt whether anything short of a fraudulent intent should, avoid a policy of the character -in question. But, be this as it may, the over-valuation in this case is not so .great as to justify us in holding as a matter of law that there cannot be a recovery on the policy in question. The decided weight of authority, we think, is in accord with this view. Bonham v. Iowa Central Ins. Co., 25 Iowa, 328; Franklin Ins. Co. v. Vaughan, 92 U. S., 516; Williams v. Phoenix Fire Ins. Co., 61 Me., 67; Wood on Insurance § 426; Dogge v. Northwestern Ins. Co., 49 Wis., 501. 3. -: provisi?n^ against addianoea- SST wimiv’aldianoe'isln-1’ valid. III. The policy provided that it should become void, if other insurance ivas subsequently obtained on the property without the written consent of the company en- , 1 ' dorsed on the policy. Other insurance was ob-_ ^ 1 y tailed without notice to or the consent of the defend ant, and the court instructed the jury that the plaintiff could not recover, unless they found that such insurance was invalid, and was so treated and considered by the company issuing the policy, at all times after it discovered such invalidity. This instruction is in accord with the holding in Hubbard & Spencer v. The Hartford Fire Ins. Co., 33 Iowa, 325; and there was evidence tending to show such invalidity, and that the company issuing the policy had at all times so treated it. It is urged that the finding of the jury in this respect is against the evidence. But we think the evidence fully sup [23] ports tlie verdict in every respect. In fact, we think if the finding had been otherwise it should have been set aside. Certain instructions on this subject were asked and properly refused, because there was no evidence upon which they could properly be based. They assume that there was evidence tending to show that the company issuing the subsequent policy had adjusted the loss under it, or had agreed to prepare proofs of the loss. We have been unable to discover any evidence tending to show that the company did not at all • times insist that the policy was void. At most, an adjusting agent of the company offered to return the premium received, and pay a comparatively small sum of money, if the plaintiff would deliver up the policy. This, however, was done as a compromise, and to avoid difficulty; but at the same time it was insisted that the policy was void, and that the company was in no manner liable under it.- , counfstare decisis. IY. We are asked to overrule or modify Hubbard & Spencer v. Ins. Co., before cited. This we are not prepared to do. The rule there announced has been the law in this state for nearly fifteen years, and we shall not stop to attempt to vindicate its correctness. Jiacfsnofoonstituting. Y. Because the plaintiff brought an action on such subsequent insurance, it is said he is estopped from maintaining this action. The ground of this claim is that the defendant relied on the statements of the petit;0I1; and, relying thereon, failed or declined to settle this case, and incurred’expense in defending it. The fact is, this action was commenced long prior to the action on the subsequent insurance, and the defendant had vigorously defended it. We are unable to see that the defendant was in any respect misled by the acts or conduct of the plaintiff. Affirmed.