Cornell v. Milwaukee Mutual Fire Insurance , 18 Wis. 387 ( 1864 )

By the Court,

Cole, J.

The objection that notice of the loss was not given in this case as required by the policy, seems to us insurmountable. It is a plain condition of the contract, that, “in case of any loss or damage by fire happening to any member, upon property insured in and with said company, the said member shall give notice thereof in writing to the secretary of said company, within twenty days from the time such loss or damage may have occurred.” It appears to" us that it is utterly impossible to say, in view of the acts of the assured, that there was ever a substantial compliance with this stipulation in the contract. The first written notice sent to the secretary or officer of the company, bore date the 11th of February, 1862, when the loss occurred on the 5th of the previous month. It is true, in this written notice the assured stated that she had given the company notice of the loss on the 7th and 81st of January, through John Scott, an agent of the company. And on the trial, after a motion of nonsuit had been made and granted, the appellant offered to prove that John Scott was the agent of the company who effected the insurance, and continued such agent up to the time of the loss, and that the assured notified him of the loss as stated in the notice of the 11th of February. Assuming that these facts had been fully established before the nonsuit was granted, we still think the result must be the same. For it can hardly be said that notifying a local agent of a loss is any compliance with a condition which requires that notice shall be given to the secretary of the company. The local agent had no authority to receive notice of loss, and therefore notice to him was not notice to the company. It is said that the requirement of a written notice of loss to “ the secretary ” need not be strictly and technically complied with, but that notice of the loss, whether written or verbal, given the secretary, or other officer in charge of the affairs of the company, or left at the office, is all that is necessary. It is possible such a notice might be deemed a substantial compliance with the condition that written notice be given the secretary. We are certainly not inclined to adhere to any literal or technical construction of such stipulations. It is the duty of courts, undoubtedly, to give them a fair and reasonable interpretation. At the same time, we should be going farther than authority or principle would warrant, to hold the notice of loss which was given in this case sufficient, or a substantial compliance with the terms of the policy. It was not given within the time limited, and was therefore insufficient.

Nor do we think it was incumbent upon the company, when it received the notice of the 11th of February, in which it was stated that it had been notified of the loss through its agent Scott, to deny that it had been thus notified, or take objection to this statement. The period for giving the notice had already elapsed, and therefore the case stands upon somewhat different ground from one where the notice is defective in some matter which can be remedied if objection is taken. In the former case the defect is incurable, while in the latter it is not. Good faith on the part of the company requires it to take its objection to a defective notice when there is time to remedy it, so that the defect may be removed. But what possible advantage could it have been to the assured in this case, for the company to have denied that it had been notified as stated in the notice of the 11th of February? How could she have been prejudiced by the omission to contradict this statement ? See Patrick v. Farmers' Insurance Co., 43 N. H., 621; The Inland Ins. & Deposit Co. v. Stauffer, 33 Penn. St., 397.

Again, is there anything in the case which shows that the company waived a strict compliance with this stipulation in respect to giving notice of loss, so that it is now estopped from insisting upon the objection that it was not given in time ? It appears to us not. The facts relied upon to show a waiver are the following letters, written to the attorneys who forwarded the notice of the 11th of February with a letter of their own upon the subject of the loss: “ Milwaukee, Feb. 14th, 1862. Messrs. STRONG & Fuller: Gents. — Your favor is at hand, and contents noted. The president of the company (S. S. Daggett) will be at your place on Tuesday, February 18th. Yours, &c., P. B. Hill, Secretary.” “ Office of the Milwaukee Mutual Fire Ins. Go., No 4, Martin’s Block, Milwaukee, April 30,1862. Messrs. Strong & Fuller. Gents: — The President of the company will be in Eacine the first of next week, to arrange the Hertzog matter. Yours, &c., P. B. Hill, Secretary, perT. D.” A few days after the date of this last letter, Strong & Fuller were notified by the company that the matter was in tbe bands of its attorney &c. There is nothing in these letters which authorizes the inference that the company intended to waive any ground of defense, or admitted its liability for a loss from which it had been discharged by the neglect of the assured to give the notice in the specified time. See the following authorities on the point of waiver: Lycoming County Mutual Ins. Co. v. Schollenberger, 44 Pa. St., 259; Trask v. The State Fire & Marine Ins. Co., 29 id., 198; Smith v. Haverhill Mutual Fire Ins. Co., 1 Allen, 297; Roumage v. Insurance Co., 1 Green (N. J.), 110; Nash v. Union Mutual Ins. Co., 48 Maine, 343; Eastman v. Carrol Co. M. F. Ins. Co., 45 id., 307.

We do not think there is anything in the letters above quoted which, upon any sound principle, can be considered as a waiver of the defect in the time of giving the notice. As already observed, if the defect had been one that might have been cured, then, by omitting to apprise the assured of the ground of the objection so as to give him an opportunity to remove it, the company might well be said to have waived the defect. The defect in this case might undoubtedly be waived, but the evidence of waiver should be clear and satisfactory.

We think the nonsuit was right, and that the judgment of the county court must be affirmed.