O'Conner v. Hartford Fire Insurance , 31 Wis. 160 ( 1872 )

Dixon, C. J.

It is objected that tbe proofs of loss furnished to .the company were not made within proper time. Tbe fire occurred April 8th, and the proofs of loss were made (sworn to) the 13th of August after. The requirement of the policy is, that “ in case of loss, the insured shall give immediate notice thereof,” and then immediately follow the words, “and shall render to the company a particular account of said loss; under oath, stating the time, origin and circumstances of the fire,” etc. It may be considered, perhaps, questionable whether this word “immediate” applies to or qualifies anything but the notice, or extends to any of the subsequent conditions or acts which the assured is required to perform. We are inclined to think it does not so extend, but is limited in its application to the notice; and this not being required to be in writing, immediate verbal notice satisfies the condition. In the present case it appears that immediate verbal notice of tbe loss was given to the local agent of the company.

But, if we are wrong in the above conclusion, there are other facts disclosed which, in our judgment, show a waiver of the objection on the part of the company. This court is prepared to affirm, as a general principle applicable to all cases of this nature, that, where the company declines to receive the proofs of loss and to pay it, upon the ground of any insufficiency or informality in such proofs, or because made out of time, as was done in this instance, it shall, in its communication to the assured, state the grounds of such refusal on its part, as the same are then known or are believed to exist by the officers or agents having charge of the business. This conclusion as to the legal duty under such circumstances of tbe officers and agents of such companies, was strongly intimated in the case of Killips v. Putnam Fire Ins. Co., 28 Wis., 472; S. C., 1 Ins. Law Journal, 169. The remark was called out there by what was considered the unfair and disingenuous conduct of an agent of the company. Nothing of the kind can be attributed to any agent here; but, as the relation between assured and insurei’ is, to a great extent, one of trust and confidence, requiring the utmost good faith and candor on both sides, we cannot think that the law will permit, much less encourage, the company in objecting to the form of the proofs, without at the same time informing the assured what the objections are. In this instance, we are glad to say that the obligations of the law 'and the obligations of private or individual courtesy and of the civilities of ordinary business intercourse, as recognized among well bred people, exactly coincide. The company requires the assured to make the fullest disclosure and submit to the most rigid examination, on his part, which is all very proper; and why should not the company in turn notify him of the objections it takes to the form and sufficiency of his proofs, and of its reasons for refusing payment? It is the opinion of this court that it should.

It is objected that it was incompetent for the wife of the plaintiff to testify to the facts showing her agency for her husband, in the transactions connected with the insurance or the proof of the loss. It is well settled in this state, that the wife, having acted as agent of her husband, is a competent witness for him, to prove any act done by her or fact transpiring within the scope of such agency. It is a well settled principle generally, as appears from the citations by counsel for the plaintiff, that the authority of an agent, when not in writing or required to be, may be proved by the agent himself. This principle, which governs in the proof of all other agencies, cannot be denied operation in the single case where the wife acts as the agent of the husband, or the husband as the agent of the wife. No reason is assigned for the discrimination, and it is believed none in fact exists.

In the present case, the plaintiff and husband was absent from home at the time the house took fire, and, with its contents, was consumed. He was not absent temporarily, but had been gone over fourteen months when the burning took place, and was still absent when the cause was tried in the court below, nearly three years after his departure. In Meek v. Pierce, 19 Wis., 300, this court held that the wife, left in charge of the house and premises of the husband during his temporary absence from home, did not become his agent in such a sense that she could bind him by her consent to have the premises searched for stolen property ; nor were the circumstances such as to make her a competent witness in his behalf, in an action of trespass by him against the persons making the search, to show that such consent was not given. In a late case it was also held, that the wife of a husband who had absconded did not thereby become his agent with general authority to sell or dispose of his personal property. Butts v. Newton, 29 Wis., 632. But in a case like the present, with the husband permanently absent and totally ignorant of the loss or destruction of the property'and of all the circumstances'attending it, as also of the kind, value and quantity of property destroyed, it would seem that the authority of the wife to make the proofs and do other necessary acts required of the assured, and her competency as a witness to testify to facts alone within her knowledge, would at once ex necessitate arise. Such, in the judgment of this court, were the authority and competency of the wife here, in the absence of any express directions or delegation of power from her husband to her. But there was evidence of such express power. She testifies that he told her “ to care for the place and property until he returned ; ” — “ to take care of it the same as himself until he returned.”

The objection, based on a strict and literal construction o; the language of the policy, that no one but “the assured” can give the notice, and that the proofs must be verified by his oat.r, and cannot, under any circumstances; be verified by the oath of another, is too refined and unreasonable to merit serious consideration. It is proper, however, to observe that counsel do not urge it, though it seems to have been looked upon as important by some of the agents of the company.

The exception to the ruling of the court excluding the evidence offered by the company for the purpose of showing that the plaintiff, who was represented in the application and policy as the owner of the land on which the house stood, was not such -owner, but held only an executory contract for the purchase of it, resolves itself into a question of the competency of the wife of plaintiff to give testimony upon that subject. The company recalled the wife as a witness in its behalf, and the offer was to prove by her testimony that the husband held only a contract for the purchase of the lot. The court excluded the testimony, on the ground that the wife could only testify as to those facts which came within the scope of her authority as agent of her husband during his absence, and that this was not such a fact. The court observed the distinction which the decisions clearly maintain, as to the extent of the wife’s competency as a witness for or against her husband in actions to which he is a party, and the ruling was obviously correct. Birdsall v. Dunn, 16 Wis., 235; Hobby v. Wisconsin Bank, 17 id., 167; Schoeffler v. The State, 3 id., 823; Farrell v. Ledwell, 21 id., 182; Butts v. Newton, supra; Barnes v. Martin, 15 id., 240; Hays v. Hays, 19 id., 182; Crook v. Henry, 25 id., 569; The State v. Dudley, 7 id., 664. The wife in this case was competent, and might be examined as a witness as to all facts transpiring within the scope of her agency, and whilst she was acting as the representative of her husband; but she was not a general witness in the cause. The inquiry concerning her husband’s title or want of title to the lot at the time he obtained the insurance, was not an inquiry into any fact or act transpiring in the course of her agency, or with which she was connected in the capacity of agent. It was a general fact, disconnected with her' representative character, and of which she was incompetent to speak as a witness. The company, if desirous of establishing the fact, if it were a fact, should have offered to prove it by some competent witness or other admissible evidence.

It appears from the whole record, therefore, that there was no error for which, the verdict or judgment should he disturbed, and that the judgment must be affirmed.

By the Court.- — It is so ordered.