#### J. H. Lutz, Appellee, v. The Anchor Fire Insurance Company, Appellant.

1 Insurance: verdict: when conclusive. Where the evidence is in conflict the verdict of the jury is conclnsive.

2 Waiver of Conditions of Policy. A provision in a policy of insur-anee that its conditions cannot he waived except by a writing on or attached to the policy is subject to waiver by the conduct of the company tending to-justify the inference that compliance therewith is not insisted upon.

3 Evidence: waiver. Evidence in the case considered and held to warrant the jury in finding that the company by its acts and conduct waived the provision that if additional insurance was effected without consent of the company it would avoid the policy.

*Appeal from Buchanan District Court.*— HoN. F. 0. Platt, Judge.

Friday, April 10, 1903.

ActioN at law upon a policy of' fire insurance. Verdict and judgment for plaintiff, and defendant appeals.—

*Aiñrmed.*

*Coole da*Leach, *Sullivan da Sullivan*for appellant.

*Bansier da Everett*for appellee.

Weaver, J.

On February 4, 1898, defendant issued to plaintiff a policy of insurance upon a building in the town of Fairbank, Iowa, for a term of six years. The building was destroyed by fire on the night of December 30, 1900, and this action is brought upon said policy for the loss thus sustained.

The appeal presents for our consideration the single defense that plaintiff, after the date of the policy in shit, *137obtained additional insurance upon the building without defendant’s written consent, and that by such act, according to the terms of the contract, the policy was avoided, and defendant was relieved from all further liability thereon. The plaintiff concedes that such a clause is contained in the policy, and that he did in fact obtain additional insurance about December 1, 1900, but avers that he notified defendant of such act, and asked consent thereto, and that defendant, instead of exercising its right to insist upon a forfeiture of the contract, waived the same, and elected to treat said insurance as continuing in force, and thereafter ■ made demand upon plaintiff for subsequently accruing installments of premium.

I. Tfie question presented is almost purely one of fact. Under familiar rules the judgment below cannot be reversed for want of evidence-unless there is such a com-i. verdict: ciusive.on píete lack of support in the record as to indicate that the verdict of the jury is the result of passion or prejudice. Where there is a direct conflict between witnesses concerning a material fact it is not for us to determine the question of their comparative credibility. That is the province of the jury alone, and we are not authorized to disturb the finding simply because our minds are inclined 'to the opposite conclusion. These remarks are more than ordinarily pertinent to a record such as we have before us. There is an irreconcilable conflict in the.testimony, and the finding of the jury as to the truth of the disputed matter is decisive of the merits of the litigation.

Plaintiff and the witness^ Agnew, who was formerly defendant’s agent at Fairbank, unite in testifying that on the 12th of December, 1900, the policy, with a letter giving notice of the additional insurance, and asking consent thereto, was inclosed in an envelope, and mailed to defendant at Des Moines, and that the policy was retained by defendant, without responding to the letter or request, *138until after the fire. On the other hand, defendant’s witnesses say that the package was not received at Des Moines ■until December 31st, and was contained in an envelope postmarked at Fairbank on that day. The alleged envelope was produced in court, but plaintiff and his witnesses both assert that it is not the one in which said policy was sent but, D the envelope in which notice of loss was sent to defendant on the day ["after the fire, a notice receipt of which is denied by defendant. Now, as the question of the defendant’s alleged waiver turns to a very great extent upon the fact asito the time when the notice of additional insurance was received, the determination of the conflict between „these witnesses is of prime importance. The 2. waive» of conditions of policy. policy provided that the taking of additional . 1 insurance would render such policy void unless written consent was indorsed thereon, and that no person acting as agent, employe, or other person than the secretary or assistant secretary of the defendant could in any way or manner waive any condition of the contract, and that such waiver must be in writing on or attached to the policy. It is also true that no such express written waiver was made, or was ever indorsed upon or attached to such policy. Defendant had the undoubted right, if it so desired, to insist upon the strict letter of its contract, and treat the policy as avoided from the moment the additional insurance was procured. On the other hand, it was not within the realm of legal possibilities that it should divest itself of all capacity to waive any contract right it possessed, or should so limit the manner and form in which a waiver may be expressed that such limitation itself might not be waived. This, we think, is substantially the holding of the court in *Ruthven v. American Fire Insurance*Co., 102 Iowa, 550. If, then, we assume, as the jury evidently found that notice of the additional insurance was given and request for written consent thereto made on December 12, and thereafter defendant continued to *139treat the policy as in force, and give the plaintiff reasonable ground to believe that it did not intend to insist upon the strict terms of the contract in this respect, then the question of a waiver became a proper one to submit to the jury.

It appears without dispute that the premium on the policy had been paid from year to year and that at the time of the alleged notice of additional insurance, no part 3 Evidence-waiver. suc^ premium was past due. On the 28th 0f j)eoeiriT3er 1900, — sixteen days after the alleged notice — defendant notified-plaintiff that the nest installment of premium would fall due on January 28, 1901, and requested prompt payment to prevent the suspension or avoidance of the policy. On January 29, 1901, after the fire, defendant notified plaintiff of the maturity of the installment, saying to him that if not paid within thirty days, his policy would be suspended. Both of these notices were subscribed by the secretary of the company, the officer named as having power to waive conditions of the contract. On April 9,1901, defendant, by its attorney, made further demand of plaintiff, and informed him that, if the premium was paid within ten days, the policy would be reinstated. It seems very clear that, if defendant was made aware of the act avoiding the policy on or about the 12th of December, and proposed to insist upon the letter of its contract, it should have acted consistently with that purpose. It could not treat the policy as void for the purpose of defense to an action to recover for a loss thereafter occurring, and at the same time treat it as valid for the purpose of earning and collecting further premiums. Having received the notice, it was within its power to ignore the failure of plaintiff to observe the precise terms of the policy, and to continue to treat the contract of insurance as still of binding forcé and effect. *Bloom v. Insurance*Co., 94 Iowa, 359. Whether it did so was a material question of fact, upon both sides of which there was competent testimony, and it was properly submitted as *140such in the instructions given by the trial court. No objection is made to the court’s charge, save in a general way that “each and all” of the paragraphs are erroneous. This is insufficient to raise any question for our consideration.

We find no reversible error in the record, and the judgment below is affirmed.