Ross v. Hawkeye Insurance

34 L.R.A. 466, 93 Iowa 222

• Court: Supreme Court of Iowa
• Decided: January 16, 1895
• Status: Published

Opinion

Given, C. J.

I. The evidence shows without conflict that the loss occurred on July 2,1889, and the court SO' instructed the, jury. The premuim note fell due on July 1, 1889, and was unpaid at the time of the fire, wherefor appellant claims that the policy was, by reason of said condition therein, and in the note, and the service of said notice, suspended at the time of the loss. Appellant's first contention in argument is that sections 1, 2, chapter 210, Acts of the Eighteenth General Assembly, providing that such policies shall not be declared forfeited or suspended for nonpayment of 1 premium until after- thirty days’ notice is given, is unconstitutional. It is entirely clear from the record that this question was not raised in or presented to the District Court. Appellant does not present the question either in the pleadings, motion for verdict, or instructions ashed. On the former appeal, and on both trials below, the defense that the policy was suspended at the time of the loss was grounded on the alleged compliance with said chapter 210.'

The constitutionality of said act is first questioned in the assignment of errors. Appellant concedes that this question was not presented to the District Court, but insists that it may be presented in this court for the first time as reasons why the instructions complained of are not correct. The instructions were given upon the issues claimed by the parties, and upon which they tried and submitted the case, and they will not be heard to insist upon any different issues on appeal. In law actions, this court sits as a court of review' only, and will not consider questions' that were not presented to the trial court Homestead Co. v. Duncombe, 51 Iowa, 525, 1 N. W. Rep. 725; Garland v. Wholeban, 20 Iowa, 271; McGregor v. Gardner, 16 Iowa, 538; Goodnow v. Plumb, 67 Iowa, 661, 25 N. W. Rep. 870;. Edwards v. Cosgro, 71 Iowa, 296, 32 N. W. Rep. 350; Laverty v. Woodward, 16 Iowa, on page 5; Lower v. Lower, 46 Iowa, 525; Hoyt v. Hoyt, 68 Iowa, 703, 28 N. W. Rep. 27; Benjamin v. Shea, 83 Iowa, 392, 49 N. W. Rep. 989.

II On the former appeal (83 Iowa, 586, 50 N. W. Rep. 47), the question presented was- upon an instruction to the effect that the service of the notice by registered letter was not completed “until, by due course of mail for registered matter, it should be received at the office of its destination.” This court held that the serv ice of such notice is completed when the letter is prop erly ad-dressed and registered at the post-office. li was not held as claimed by appellant, “that the notice was served when the letter was mailed.” Section 2 oi said chapter 210 provides that such notice may be served by registered letter, addressed to the assured at his post-office address named in or on said policy. This coui’t said that “in such a case the service is complete when the acts specified as constituting the service are done.” Registering the lettér is one of the acts specified, and is necessary to constitute a complete service. Appellant insists, and correctly so, that the ruling on the former appeal is the law of this case. The learned district judge, so viewing the law and the former opinion of this court, instructed the jury that registration of the letter was necessary to a completed service, and submitted the question whether said letter was registered on June 1, 1889. The court further instructed that, under the laws, rules, and regulations of the post-office department, “after a receipt has been given therefor and the letter has been numbered, the letter becomes registered.” After reciting the undisputed facts, that the defendant had on June 1, 1889, delivered the notice in question to the postmaster at Des Moines, properly addressed and stamped for registry, and procured from him a proper receipt therefor, the court instucted as follows: “The only question for you to determine, as to this defense, is as to whether the registry was completed by assigning to said letter its number and indorsing the same on the letter. All other things necessary to a complete registration of said letter on June 1, 1889, are shown by the uncontroverted evidence. You must determine from the evidence whether its registry number was indorsed on 2 said letter, June 1,1889, or not.” On the former appeal we were not called upon to decide, and did not decide, what constituted the registration of a letter. The instructions are in harmony with the laws, rules, and regulations of the post-office department, as shown in.the evidence. It is true that, under the authority of section 1052 of the Postal Laws and Regulations, the postmaster a.t Des Moines was using “other than standard registration forms.” Instead of the slip receipt provided for by Postal Laws and Regulations, receipts were given to appellant, and to certain other companies, for letters deposited for registration, in a separate booh for each company. This related solely to the manner of receipting for the letters, and did not In any way change the requirements as to registration. Section 1056 of said Laws, Rules, and Regulations, is as follows: “After a receipt has been given therefor, and the matter has been numbered as prescribed in the preceding sections, the letter or parcel becomes registered and must be guarded with the utmost care.” We have seen that service of such notice by registered letter is not complete until the letter, properly addressed, is registered, and that it is not registered until' numbered as required. The question whether this letter was registered on the first day of July, 1889, was submitted to the jury, and it found, as under the evidence it was warranted in doing, that the letter was not registered until after that day. The judgment of the District Court is affirmed