Barry v. Farmers' Mutual Hail Ass'n

Sherwin, J. 1 In the policy issued to the plaintiff it is provided! that the loss in all cases shall be considered the difference between the amount grown on the damaged tract and a fair average of the same kind grown on an equal tract in the immediate neighborhood where no damage was sustained, and, in case of disagreement as to the amount of the loss, “it shall be settled by arbitration as follows.” There was no attempt at arbitration, and the appellant urges that no evidence as to the amount of loss 187 was competent, because thereof. Arbitration of the amount of the loss was not made a condition precedent to bringing the action, and a failure to arbitrate would not defeat it. Gere v. Insurance Co., 67 Iowa, 272; Lesure Lumber Co. v. Mutual Fire Ins. Co., 101 Iowa, 514. If the appellant’s contention, based on language in the Gere Case, were adopted, a failure to arbitrate under such provisions would defeat the action for want of evidence, and this should not be done. Numerous other errors are argued as to rulings on testimony, but none are of sufficient importance to demand notice. It is sufficient to say that we find no'prejudicial error in the rulings complained of. 2 'The plaintiff claimed damages to corn and small grain. In its instruction as to the measure of plaintiff’s recovery, the court told the jury that the value of the grain was the market value thereof at the time of threshing, less the reasonable expense of threshing and marketing the same; and, as to the corn, that its valúe would be the price for which it could have been sold upon the premises, less the reasonable and necessary expense of husking and cribbing. An instruction practically the same as this was disapproved in Barry v. Insurance Ass’n, 110 Iowa, 433, because it allowed the plaintiff to recover the value of a mature crop, without any deduction for expense incurred in fitting it for the market. In the case of small grain, the harvesting and stacking, if necessary, were proper items of expense to be deducted, in .addition to those of threshing and marketing; and, in relation to the corn, it may have required work in the field to mature it, which might, under some circumstances, have been properly deducted in determining the amount of the defendant’s liability. These -matters were all eliminated by the, instruction given, and improperly so. It was not, as claimed by appellee, the duty of the defendant to show this expense, if there was any. It was a part of plaintiff’s ease to prove just what damage she had suffered, and, failing to do so, she was not entitled to a verdict. For the error pointed out, the júdgment is reversed. — Reversed.