Rokes v. Amazon Insurance ( 1879 )

Robinson, J.,

delivered the opinion of the Court.

This is an action on a policy issued by the appellee, insuring the property of the appellant against loss by lire.

The policy requires that proofs of loss shall be furnished in writing immediately after the fire. Immediately as here used means within a reasonable time; and what is a reasonable time must of course depend upon the facts and circumstances of each particular case. Cashan vs. N. W. Nat. Ins. Co.. 5 Biss., 476; Edwards vs. Lycoming Co. Mut Ins. Co., 75 Penn., 318.

Admitting, however, for the purposes of this case, that proofs of loss were not furnished within the time prescribed by the policy, the main question is, whether there is any evidence legally sufficient to show a waiver of this condition on the part of the appellee. It is conceded that where proofs of loss are furnished in time, and such proofs are defective, if the insurer puts his refusal to pay on other and distinct grounds, he will be held to have waived all objections to such defects; and will not be permitted to rely upon them in a suit upon the policy. Fair dealing in such cases, requires that the insurer should make known his objections when the proofs are furnished, in order that the insured may correct the same within the time prescribed by the policy.

But it is argued that the failure to furnish the proofs within time stands upon different grounds, because the insured having by his own default forfeited the right to recover on the policy, he is not in any manner injured or prejudiced by the subsequent acts and conduct of the insurer. And it is contended, therefore, that a new consideration or an express agreement on the part of the insurer, is necessary to renew or give vitality to the policy.

It was said by Earl, Commissioner, in Underwood vs, Farmers’ Joint Stock Ins. Co., 57 New York, 502, that the law of waiver was based upon the doctrine of estoppel, and “ that in the absence of some consideration for a waiver, or some valid modification of the agreement between the parties, there could be no such thing as waiver of a condition precedent, except there be in the case an element of estoppel;” in other words, unless the failure to furnish the proofs within the time prescribed by the policy, had been occasioned in some way, by the acts or’ conduct of the insurer. The other commissioners, however, did not concur with the learned Judge in his views upon the law of waiver, and the case was decided on other grounds. See also Beatty vs. Ins. Co., 66 Penna., 9.

We have carefully examined all the cases within our reach on this branch of the case, and are of opinion that the contention of the appellee is unsupported either by principle or by the weight of authority.

Preliminary proofs are required for the benefit solely of the insurer, in order that he may ascertain the nature, extent and character of the loss ; and the condition in the policy in respect thereof, being inserted for his benefit, there is no reason why he may not waive or extend the time within which such proofs are to be furnished. Nor is it necessary to prove an express agreement to waive. On the contrary, it may be inferred from the acts and conduct of the insurer inconsistent with an intention to insist upon the strict performance of the condition. Tayloe vs. Merchants’ Fire Ins. Co., 9 How., 390; Post and Dowding vs. Ætna Ins. Co., 43 Barb., 351; Phillips vs. Protection Ins. Co., 14 Mo., 220; Owens vs. Farmers’ Joint Stock Co., 57 Barb., 518; Graves vs. Wash. Incor. Ins. Co., 12 Allen, 391 ; Dohn vs. Farmers’ Joint Stock Co., 5 Lansing, 275.

But conceding for the purposes of this case, that there must be an element of estoppel in order to constitute a waiver, there is evidence in this record legally sufficient in our opinion to submit to the jury to support a waiver given on that ground. Estoppel as used in this connection, we understand to mean where the insurer, knowing that the proofs have not been furnished within time, so bears himself thereafter in relation to the contract, as fairly to lead the assured to believe that he still recognizes the policy to be in force and binding upon him.

Now in this case, the property was destroyed by fire on the 8th of July, 1876, and on the next day, Mr. Montague, the general agent of the appellee, visited the scene, and personally inspected the loss and damage to the property.

On the second day after the fire, the appellant in company with Mr. Forrest, his broker, called on Mr. Montague the agent, for information in regard to the nature and character of the proof required, and for blanks upon which to furnish the same; they were referred by him to Mr. Fickey, as the person specially appointed by the company to adjust and settle the loss. Accordingly they called on Fickey, and not having any blanks of the company, he furnished them with other blanks for the purpose.

The proofs were prepared by Forrest, the broker, and on the 28th of July, within a fraction less than three weeks after the fire, they were served on Fickey.

By letter of August 8th, Fickey notifies the appellant, and Forrest his broker, that the proofs are defective; and concluded by saying the company “preferred to have the proofs furnished upon its own blanks, which he was now ready to furnish.”

The appellant was absent from the State and did not return, nor did he receive Fickey’s letter until several months after it was written. During his absence, however, Fickey several times inquired of Forrest about the appellant’s return, and was anxious to know what were the appellant’s views in regard to a settlement. Upon the return of the latter, several conversations of like import took place between him and Fickey, in which the appellant was pressed to say what he would take in settlement of the loss.

Sometime in February following, Forrest again called on Fickey. to know in what respects the proofs were defective, and what additional proof was required; and after this interview, he prepared amended proofs, No. 2, and on the 5th of March served the same on Fickey. Objections were also made to the amended proofs', and in his letter of April 5th, Fickey concluded by saying:

“ The company requires that you furnish proof of loss, and evidence to sustain your claim in the mode and manner provided for by their policy of insurance.”

Being again requested to amend his proofs, and finding that Forrest his broker was unable to prepare them in a manner satisfactory to the company, the appellant applies to John H. Handy, Esq., attorney at law. Handy immediately called on Fickey, and requested him to point out specifically the defects in the proofs, and offered to furnish any additional proof the company might require. In this interview, Fickey said he had no doubt but what he and Handy could settle the matter, and further said the appellant himself could settle the loss by deducting something from his claim. Fickey furnished Handy with additional blanks, and they parted with the distinct understanding on the part of Handy, that he was to prepare additional proofs, and that they would be accepted by the company. Accordingly, amendéd proofs No. 3, were prepared and served on Fickey on the 5th of May, and on the 1th of the same month on the appellee, at its office in Cincinnati. Service of proof was acknowledged by the president of the company, but no further notice was taken of it.

It thus appears that from the 28th July, 1816, the time when the first proof of loss was furnished up to April 5th, 1811, when amended proof No. 3 was served on the company, no objection was made to the proofs on the ground that they were not prepared in proper time. On the contrary, although fertile in objections, and even ready to make them, the company always professed to be ready and willing to accept the proofs, provided they were made out as required by the policy, and as paper after paper was rejected, the appellant was requested to go on and perfect his proofs. And when at length he has succeeded after great labor and expense, with the aid of an insurance broker and a lawyer, in overcoming all formal objections to his proofs, he is told for the first time that he has forfeited his rights under the policy by not having furnished his proofs in proper time. And this too by a company whose general agent visited the scene the day after the fire, and had himself every opportunity of ascertaining the extent and character of the loss, and to investigate whether the property was in fact destroyed by any of the perils insured against.

The record shows that with full knowledge that the proofs had not been furnished in time, the appellee not only failed to make objections to them on this ground, but from the time when they were first furnished, to the time when amended proofs No. 3 were served on the adjuster, the appellee not only encouraged but requested appellant to perfect his proofs — that upon the faith of such requests, the appellant has incurred the labor and expense of preparing additional proofs, that during all this time the appellee recognized the binding force of the policy, by repeatedly offering to settle with the appellant, provided he would abate something of his demand. It can hardly be necessary to say, in view of these facts, that if an element of estoppel be necessary to constitute a waiver, here is evidence sufficient to support it. The whole record shows from the beginning to the end a persistent and bona fide purpose on the part of the appellant to furnish any and all proofs required by the company, and we regret to say it shows also an equal persistency and readiness on the part of the appellee to make objections of every kind to the proof thus furnished.

(Decided 18th June, 1879.)

In regard to the clause in the policy that provides " no waiver or modification of any of the terms or conditions of this policy shall be made in any event,” it is sufficient to say that it refers to those conditions and provisions of the policy, which enter into and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are properly designated conditions; — and that it has no reference to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing proofs of loss. Franklin Fire Ins. Co. vs. Chicago Ice Co., 36 Md., 120.

We are of opinion, therefore, the Court below erred in granting the defendant’s prayer, that there was no evidence of a waiver; and erred also in refusing the prayer offered by the plaintiff.

Judgment reversed, and new trial awarded.