Wilhelmi v. Des Moines Insurance

Kinne, J. 1. First insurance: loss: action prematurely brought. I. It is insisted by the appellant that this action was prematurely brought. It will be observed that the proofs of loss were furnished October 4, 1889, and the action begun . . , n ,, !r more than .sixty and less than ninety days thereafter. Our statute provides ( McClain’s Code, section 1734) “that no action shall be begun within ninety days after notice of such [loss] has been given.” It is clear that the notice of the fire given on September 22, 1889, was not the notice contemplated by the statute, from which the ninety day period would begin to run. It has been held that the statutory notice “includes the affidavit showing the facts in regard to the loss which must accompany it.” Von Genechtin v. Citizens’ Insurance Co., 75 Iowa, 546. In the case at bar it is true it is conceded that there was “a waiver of some of the formalities in the proof required by the statute, but this waiver occurred on October 4,1889.” It was held in Quinn v. Capital Insurance Co., 71 Iowa, 615, that, “in a statutory sense, the money [329] was not due on the policy until the expiration of the period named therein. The holder of the policy could not lawfully demand payment until that time had elapsed after notice had been given.” Von Genechtin v. Citizens’ Insurance Co., 75 Iowa, 546. In Vore v. Hawkeye Insurance Co., 76 Iowa, 548, where it was claimed that the provisions of the statute were eliminated from the policy by the policy itself, which provided, “that the contract of- insurance is wholly embraced in the policy and application of the assured, and that the defendant had waived the conditions of the statute by receiving proofs of loss, and thereafter declaring that the policy is void.” The court held that the statutory provision as to the time of the commencement of the action did not enter into or affect the contract, but limited the remedy, and that hence the contract did not control the remedy, as provided by the statute. In Taylor v. Merchants’ & Bankers’ Ins. Co., 83 Iowa 402, where the policy provided thatj the amount of loss should be paid within sixty days after notice and proof, and the action was begun after the expiration of that period, but before ninety days expired, it was held that the action was prematurely brought. It will be observed that the question presented is by no means an open one in this state. Whatever may be the rule as to the power of the company to waive formal notice and proof of loss, as required by the statute, the question •of their right to waive the provisions of the statute, prohibiting the commencement of an action prior to the expiration of ninety days after notice and proofs of loss are given, must be regarded as settled. The action in this case was prematurely brought. 2. —: —: —: construction of statute. II. It is contended that the statute only applies to buildings. The statute expressly states that “all the provisions of this chapter shall apply to -. .. , .... and govern all contracts and policies of insurance contemplated in this chapter, anything in the [330] policy or contract to the contrary notwithstanding. In view of this provision and the reading of the section of.the- statute under consideration, it cannot be doubted that the legislature intended by the language used to-embrace all losses, whether of buildings or of personal property. Indeed, no good reason can be given why the prohibition against bringing suit until after the time fixed by statute should apply in case .of losses op buildings, and not in case of losses of personal property. Inasmuch as such a distinction does not appear in the act, we cannot presume that the lawmaking power intended to include the one class of property in, and exclude the other from, its operation. III. The appellant claims that the provisions of the policy were violated by the keeping of gasoline upon the insured premises. We do not find that this question was raised by the issues presented to the district court, and hence cannot consider it. Lower v. Lower, 46 Iowa, 525; Barlow v. Brock, 25 Iowa, 310; Pierce v. Early, 79 Iowa, 199; Beard v. St. Louis, A. & T. H.Railway Co., 79 Iowa, 527. The judgment of the district court is reversed.