Dwelling House Insurance v. Dowdall , 55 Ill. App. 622 ( 1894 )

Mr. Justice Boggs

delivered the opinion of the Court.

This case was before us at a former term. We then reversed a judgment against the insurance company, for rea. sons given in the opinion found in 49 App., page 33, and remanded the case. This is an appeal from a second judgment against the appellant company. Reversal is asked upon three grounds: 1. That proofs of loss were not forwarded to the company within the time stipulated in the policy. 2. That the court erred in giving instructions five and six, in behalf of the appellee. 3. That appellee did not have such title to the property as the policy required. The policy provided that the insured should give immediate notice in writing of a loss by fire, and within thirty days after such loss, should render a statement to the company, signed and sworn to by the insured, stating the knowledge of the insured as to the time, origin and circumstances of the fire; the interest of the insured in the property destroyed or damaged by fire; the cash value thereof; the amount of loss thereon ; all incumbrance, if any; other in. surance, if any; changes in title, etc., if any; how occupied, etc.; to which should be annexed a certificate of the nearest magistrate, to the loss, and his opinion whether the insured had sustained his loss honestly, etc. The property insured —a barn—was burned October 8,1890. The appellee notified the appellant company in writing on the next day after the fire, and asked that an adjuster be sent to adjust the loss. The company, by letter dated October 24th, acknowledged receipt of such notice, and advised the appellee that' its special agent would visit the scene of the fire for the purpose of ascertaining the extent of the damage-, <l but for no other purpose, neither he nor any local agent having any authority to waive or extend any of the conditions of the policy.” The appellee testified that Mr. Ira Smith, an agent of the company, came to see her within thirty days after the fire, represented that he was the adjuster of the company, and had come to settle the loss; that he looked at the ruins, called on her and her son to give him proof of the loss, asked them many questions about the barn and its contents, and the fire, put their answers to such down in writing, and called on Mr. Furgerson, a liveryman, to know if the answers were correct an to prices of hay, corn and oats that was burned, and after completing the writing and consulting with Hr. Furgerson, offered to pay her §400 in full of her loss, which she declined to accept, and the agent went away. This testimony was not controverted. Nothing further occurred until December 20th, when appellee’s counsel addressed a letter to the company regarding her claim. The company, under date of December 22d, replied, denying liability upon several grounds, among others, that proofs of loss, required by the policy, had not been furnished. Proofs of loss in due form were then prepared and transmitted to the company, accompanied by a letter insisting that the company had received sufficient proofs of the loss, etc. This, however, was more than thirty days after the fire. The agent of the company who visited the appellee, assumed to have power to adjust and pay the loss. He obtained and reduced to writing, the information required in formal proofs of loss, and his conduct was such as to warrant the assured in believing that liability to pay was conceded, and that the only unsettled question was the amount to be paid. The assured was advised by letter from the company that this agent ivould visit her for the purpose of ascertaining the extent of the damage. He discharged that duty by making a full investigation of the loss, in which the assured, at his request, joined. The natural tendency of what he did and said while so acting in the scope of his authority as agent, was to leave upon the mind of the assured the reasonable conclusion that the only question unsettled was the amount of her loss, and hence, to induce her to believe and understand that it was not required that she furnish to the company proof of loss prepared in technical compliance with the policy, which, if prepared, would contain practically the same information already given to him as an agent of the company. The conduct and acts of the representative of the company was such as to justly inspire this belief, and to explain, and in our judgment, fully excuse the failure to present more formal proofs of loss within the stipulated period of thirty days. When advised that the company insisted upon proofs in strict compliance with the policy, the assured, immediately complied with the demand. The only objection to proofs then forwarded is that it was not furnished within the time prescribed. We hold the company estopped from availing itself of this objection, because the acts and conduct of the agent induced the delay. The principles supporting this ruling are announced in Bigelow on Estoppel, pages 660-61-62-63-64-67; Amer. and Eng. Ency. of Law, pages 1054-55-56. The stipulation in the policy that no agent or other representative of the company shall have power to waive any provisions or condition of the policy may be effective as against an alleged waiver by agreement or contract with an agent or representative, but has no application when the law declares a waiver by estoppel, because of the acts of the company through its agent or representative. Such estoppels do not rest upon the power or lack of poAver of the agent to change the provisions of the policy or waive any of its agreements, but arise in laAV, because of the acts of the company through its agent, acting in the scope of his apparent poAver as its representative. The second of appellant’s grounds for re\*ersal, questions the correctness of instruction numbers 5 and 6, given in behalf of appellee. Each of these instructions relate to the necessity of strict compliance by the assured with the pro\Tisions of the policy concerning the delivery to the company of proofs of loss. If Ave are right in the vieAV heretofore expressed, that a waiver or estoppel in this respect Avas established by undisputed testimony, it Avould folloAv that the verdict Avas right, so far as that point Avas concerned, and that being true, it is not important to inquire Avhether the instructions are strictly accurate. The verdict being supported by uncontroverted testimony, ought not be reversed, even though the jury were misdirected as to the law. We do not, IxoaveArer, regard the instructions fatally defective. The remaining ground of objection to the judgment, is, that the appellee did not have such title to the property as Avas represented in the Avritten application, and required by the provisions of the policy. It appeared, from the testimony of the appellee, which is undisputed, and moreover fully corroborated by that of Mr. J. A. Pike, who was present at the time that the application was drawn by the soliciting agent of the company, that she disclosed truthfully to such agent all the facts relating to her right, title and interest to the property, and that the written statements as to her title in the application were the conclusions drawn by the agent, from the facts so made known to him. The company must, therefore, be deemed precluded from denying liability upon the ground that the title is not as stated in the application. Germania Ins. Co. v. McKee, 94 Ill. 494; Phœnix Ins. Co. v. Hart, 149 Ill. 513; Germania Fire Ins. Co. v. Heck, 125 Ill. 361. We think the record is free from error of reversible character. The judgment must be, and is, affirmed.