Cronenwett v. Iowa Underwriters of the Dubuque Fire & Marine Insurance

LANGDON, P. J.

This is an appeal from a judgment for the plaintiff, A. E. Cronenwett, in an action upon two fire insurance policies issued by the appellants. Cronenwett was the owner of the real property covered by said policies, and Louise Guenther, the other party plaintiff, was the owner of the mortgage upon said property. It was stipulated by the parties in open court that the said mortgagee had duly received notice of cancellation of said insurance policies, and judgment was entered against said mortgagee accordingly. We consider the case, therefore, merely with reference to the rights of the plaintiff Cronenwett. The fire occurred in May, 1916. The answers of the defendants set up as a separate defense that during the year 1915 the defendants gave written notices to Cronenwett that said policies would be canceled within five days from the respective dates of the notices, and that said notices were duly received by the plaintiff. As a second defense the defendants allege that by the terms and conditions of the policies sued upon it is provided, among other things, that “unless otherwise provided by agreement, indorsed hereon or added hereto, this company shall not be liable for loss or damages occurring . . . while the interest in, title to, or possession of the subject of insurance is changed, excepting ... a change of occupancy of building without material increase of hazard. ...” It is then alleged that after said policies had been issued, the property covered by them was leased to one Daniel W. Markin for a term of three years and that Markin was let into possession under said lease, and that no written permission for such action was indorsed upon the policy. It is also alleged that the hazard of the defendants was materially increased without their consent by reason of the fact that the lessee of the property kept upon the premises four hundred gallons of distillate, a highly inflammable liquid. This last defense was not relied upon at the trial, and is not urged upon appeal.

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The first contention of appellants may be briefly disposed of. It is, that the proof shows that the policies in question were canceled by written notices sent to the assured

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or to Ms agent. In support of tMs position, appellants urge upon our attention certain testimony in the record sustaining this view. However, the record contains testimony from which opposite conclusions may logically be deduced. Findings were waived by the parties hereto, and it was agreed that the court should submit to the jury certain questions of fact. These questions related to the cancellation of the policies, receipt by plaintiff of the notices of cancellation alleged to have been sent, and the agency of one Kaminsky to represent Cronenwett for the purpose of receiving said notices of cancellation. The jury answered all of these questions in the negative—and against the contentions of the ■defendants. Such matters are, therefore, not open for review here, and we start from these findings of the jury as from established facts.