
    J. F. Brock v. The Des Moines Insurance Company, Appellant.
    1 4 5 3 Plea of Performance: issue upon. While our Code allows the performance of conditions precedent to be alleged as a general conelusion and requires an answer controverting such an allegation to state specifically in what particular there was non-performance (Code, 3715, 3717), the plaintiff may waive the benefits given him by these statutory provisions; and where be attempts to set out the facts constituting performance on his part, instead of contenting himself with stating performance as a conclusion, an issue is raised by answer in the nature of a general denial, though it fails to point out in what particular there was no performance. Hagan v. Oo., 81 Iowa, 333, distinguished and modified.
    
    3 6 Proof of toss. Where such proof fails to comply with the requirements, either of the policy issued or the Code, it is inadmissible in evidence, and a verdict should be directed for the insurer.
    7 Waiver of proofs of loss is not available unless pleaded.
    
      Appeal from Hamilton District Court. — Hon. N. B. Hyatt, Judge.
    Friday, October 18, 1895.
    Action, on a policy of insurance. Trial to a jury. Verdict for plaintiff. Defendant appeals.
    
    Reversed.
    
      
      McVey & Cheshire for appellant.
    
      George Wambach and Wesley Martin for appellee.
   Kinne, J.

I. Plaintiff! resided' in Homer, Iowa. He carried a policy of insurance in defendant company for the sum. of one thousand two. hundreid dollar®.; two hundred dollars being on his store building, and one thousand, dollars upon his stock of goods. The policy wffl issued on May 14, 1892, and the property was destroyed by fire: on January 24, 1893. October 16, 1893, this suit was instituted upon the policy. It is; alleged- in. the petition that in January, 1893, plaintiff “furnished the- defendant with proof of hisi said loss, in writing, accompanied by hi® affidavit as required by law, and has otherwise performed all the conditions: of saidl policy on-his. part.” The policy, a copy of which is attached to the petition, provide® that: “In case of loss or damage by fire, the assured shall forthwith give notice thereof to1 the company, * * * and, within thirty days, render an- account of the loss, signed and -sworn to, stating how the fire originated, giving copies, of the written portions, of all policies thereon; also, the actual cash- value and ownership of the property, and the occupation of the premises; and, when required, shall submit to. examinations under oath. * * *” The policy further provided that no “condition, stipulation, covenant, or1 clause * * * shall be altered, annulled, or waived, or clause added, * * * except by writing indorsed hereon or annexed -hereto- by the secretary, with his signature affixed thereto', any contract had by parol or understanding with the agent, had before or after issuing the policy, to the contrary notwithstanding.” A further provision was “that none of the terms-or conditions. of this, policy can be waived oy any person or persons whomsoever, except in writing by the secretary of the company;” also, that “no1 agent of this company, has any authority to waive, modify, erase, or strike out any of the printed conditions of this policy.” The answer consisted of a general denial, and a plea that, as the suit was not commenced within the time fixed in the policy, the action was barred. On the trial the following, which was claimed to be the proofs of loss furnished the company, was introduced in evidence:

“State of Iowa, Hamilton County — ss.: I, J. F. Brock, being duly sworn,, on oath depose and say: That on the 16th day of January, 1893, I made inventory of my stock of goods in my store at that date, including medicines, and some of the medicines was held by me for sale on commission; also, said inventory, including furniture and fixtures in my store. That said inventory, including above-mentioned medicines and furniture and fixtures, amounted to fourteen hundred forty-six 29-100 dollars ($1,446.29). Medicine held on com. amounted -to..........$ 36 01 Furniture and fixtures...................... 53 58 Goods sold after inventory, and prior to fire.. . 80 42

Reducing my stock and inventory........$170 01 “That my policy permits me to carry insurance on § the actual value of my stock of goods, in policy No. 58,275, Des Moines Insurance Company. That I refuse to allow any depreciation of value on my stock on account of age or damaged goods. I have been in the business since August, 1890. At the time I went into business', I purchasefd a stock of goods of Mr. J. E. Smith, at Homer, Iowa. It is agreed that the Des Moines Insurance Co. have not waived any of its legal rights or defenses by investigating my loss for the purpose of getting facts relative to my fire, or amount of stock on hand at time of loss.”

It was properly -sigmedi and sworn to. At the conclusion of the evidence the defendant moved the court for an order directing the jury to- return a verdict for it —First, because the case was brought too late; and, second, that proofs of loss are a condition precedent to a recovery, under the policy and the statute, and the undisputed evidence shows, that no- proof of loss was made. This motion was overruled, and an exception noted. Thereupon the. defendant asked the court to give certain instructions, — that, for the reasons stated in the motion, the plaintiff could not recover. These requests were refused, and1 duly excepted to. Plaintiff then moved the court for an order directing the jury to return- a verdict f-or him, which was sustained, and a verdict -so directed and returned, and defendant excepted.

II. It isi contended that, before recovery can be had in this case, it must appear1 that proper proofs of lo-ss were furnished the defendant company. That such proofs, are a condition precedent to the right to re-cover is- not a matter of dispute between counsel. Plaintiff contends, that such proofs were in fact furnished; that, if the proofs, in fact furnished were insufficient, they could- only be attacked by specially pleading the objections to- them, which was not done. By the terms of the policy, it wa.s- incumbent upon plaintiff, within thirty days, of the 1-o-ss, to render an account of the loss., signed and sworn to, stating how the fire- originated, the actual cash value of the property, and- to- set forth copies of the written portion o-f the policy. The statute- requires- the proof of loss to be by affidavit, setting forth the facts, as to how the loss occurred, so far as. they are within the knowledge of the insured, and the -extent, of the loss, which must be given within sixty days, from the time the loss, occurred. McClain’s Code, section 1734. Welsh v. Insurance Co., 71 Iowa, 338 (32 N. W. Rep. 369). It will be observed that the so-called proofs of loss did not conform to the requirements of either the policy or the statutes. No account of the loss was rendered. There was no statement as to how the fire originated. The proof does not state the actual cash value of the property, except as. it may be deduced from- the contents of the paper by inference. The proofs fail to conform to the statutory requirements, in that no facts are set forth' showing how the loss, occurred. In any view, the proofs of loss, were not such as required by law.

5 6 It is said that any defects therein were waived because defendant did not plead them, and Code, section 2715, is relied upon. That section provides, “In pleading the performance of conditions precedent in a contract, it is. not necessary to state the facts constituting such performance, but the party may state generally, that he duly performed all the conditions on his part.” By section 2717 it is provided, that, if such an allegation is controverted, “the facts relied on shall be specifically stated.” Plaintiffs claim is that the pleadings present a case which is. to be governed by these sections, and, as defendant did not plead the facts touching the insufficiency of the proofs of loss, it cannot now be heard to complain. We need not determine whether, in the event plaintiff had pleaded “that he had duly performed all' the conditions” of the policy on his part, the general denial of defendant would have raised an issue thereon. Plaintiff did not so plead. He averred that he had furnished defendant with proof of loss in writing, accompanied by his affidavit as required by law. Plaintiff, in his pleading, did not state generally “that he duly performed all the conditions on his part,” but undertook to set out the facts constituting the performance of the conditions of the policy. These were denied, and this ■ raised an issue, and made it necessary for plaintiff to establish the fact that he had given proper proofs, of loss. We are aware that some language is used in Hagan v. Insurance Co., 81 Iowa, 332 (46 N. W. Rep. 1114), which, it is insisted, holds to a contrary view. We think the doctrine there announced, if it can be said to be susceptible to the construction contended for, should be modified in conformity with the views herein expressed. The object of the statute was to. permit a party to state as a conclusion his performance of all the conditions of the contract upon which he seeks to recover, and, when that is done, issue can only be raised thereon by pleading the facts relied upon to contradict the allegation. If, however, the pleader does not seek to. avail himself of the benefit of that provision of the statute, he is not in a position to claim that a general denial of his allegations raises no issue. If, in other words', he undertakes to set forth the facts constituting performance, whether fully or otherwise, an- issue may be made thereon by a general denial, as was done in this case. We have, then, a case where there was an' issue as to whether or not legal proofs of the loss were furnished. All of the evidence on part of the plaintiff which tends to snipport his claim was the paper, a copy of which we have heretofore set out; and, as we have shown, it was not such proof of loss as. the law required. As this paper was objected to, it should not have been received in evidence.

Likewise, the court erred in directing a verdict for plaintiff, and in overruling defendant’s motion for a verdict, because no recovery could be had in the absence of evidence of proper proofs of loss having been given. It is not necessary to consider the question as to whether proofs of loss were waived. No. waiver was pleaded, and the law is. well settled in thin state that a waiver cannot be reliecb upon unless it is pleaded. Edgerly v. Insurance Co., 43 Iowa, 590; Eiseman v. Insurance Co., 74 Iowa, 11 (36 N. W. Rep. 780); Bernhard v. Insurance Co., 40 Iowa, 442; Zinck v. Insurance Co., 60 Iowa, 267 (14 N. W. Rep. 792).

Other errors are assigned, hut we need not consider them. Most of the. questions presented are determined by what wé have already saidi. — Reversed.  