Badger v. Phœnix Insurance Co. of Brooklyn , 49 Wis. 396 ( 1880 )

Ta.yloR, J.

As the only object of requiring proofs of loss by the assured is to give the company evidence showing that the loss was not fraudulent, and showing the extent of the loss, so that it may judge of the justice of the claim made by the assured under the policy, it would seem that the examination made in this case might well be deemed by the assured as a substitute for the formal proofs required by the terms of the policy. The examination covered the grounds required to be covered by the formal proofs, and, having been made under the searching and critical questioning of the defendant’s agent, was necessarily more satisfactory than the formal proofs, were likely to be. The provision of the policy which requires the assured to submit to this examination, even though formal proofs liave been made and delivered, clearly indicates that the company considers this examination under oath, to be made by one of its own agents, a more effective and certain way of getting at the real facts attending the loss, and the amount of the loss, than is afforded by the formal proofs. We are therefore inclined to hold that when the company demands that the assured shall submit to such examination before the formal proofs of loss have been made, and he submits and answers all questions propounded to him, he has the right to consider such examination a substitute for the formal proofs, and such formal proofs will be held waived, unless the company notifies the assured that it requires such formal proofs in addition to such examination.

The making of the formal proofs and the receipt of them by the company is not a waiver on its part of the right to have the examination, as it is clear from the terms of the policy that the examination is intended to enable the company to have other and additional proofs of the loss, if it desires them, before it shall be compelled to pay. The examination is to enable the company to obtain more full and complete proofs than the formal proofs afford; and when this kind of proof is demanded and received before the formal ones are made, the making of such formal ones would seem to be a work of supererogation, and in such case it is just to presume that the company waives the formal proofs. The certificate of the magistrate is a part of the formal proofs of loss. It is required as some evidence of. the fairness of the loss, and as a slight protection against a fraudulent claim; and, as a part of such formal proofs, may be deemed waived by the examination unless the assured be notified that it is required notwithstanding such examination. That an examination of the kind made in this case is a waiver of the formal proofs, or that it is evidence tending to prove such waiver, is fully sustained by the authorities. Priest v. Ins. Co., 3 Allen, 602; Wyman v. Ins. Co., 1 Allen, 301, 304; Security Ins. Co. v. Fay, 22 Mich., 467.

In this last ease the court held that a waiver of the formal proofs might be inferred from the fact that an examination had been made by an agent of the company, o'f a much less formal nature than the one made in this case. The court used this language in regard to the office which the proofs are intended to perform: “We think the formalities, being mostly matters of routine, beyond the ascertainment of the facts relating to the circumstances of the fire and the amount of the loss, might be waived, and that the case was fairly left to the jury on that point.” This court has always held a liberal rule as-to furnishing proofs of loss, and has repeatedly held that if imperfect proofs are furnished and retained, without notice from the company that they are defective, and that further proofs are required, it will be presumed the company have waived all defects in such proofs, and all necessity for further proofs. Killips v. Ins. Co., 28 Wis., 472; Warner v. Ins. Co., 14 Wis., 319; O’Conner v. Ins. Co., 31 Wis., 160; McBride v. Ins. Co., 30 Wis., 562-8; Bammessel v. Ins. Co., 43 Wis., 463.

We think the evidence in this Case was sufficient to have justified the jury in finding that the formal proofs of loss had been waived by the company, and that upon this question the case should have gone to the jury. But it is urged that if the learned circuit judge erred upon this point, still the nonsuit was right, for the reason that the action was prematurely commenced, under the provision of the policy that in case of loss the company promise to pay, “ sixty days after proofs of loss shall have been made by the assured, and received at the office at Chicago, and the loss shall have been ascertained and proved in accordance with the terms and provisions of the policy.” It is probable that under this provision, if formal proofs of loss had been made and sent to the office at Chicago, an action might properly be commenced after the expiration of sixty days from that date, although the company may have required the assured to submit to an examination at a later day, and such examination bad not been completed sixty days before the action was commenced; the meaning of the whple provision being that the company shall not be compelled to pay until sixty days after formal proofs are made and received, nor until such examinations as the company have the right to demand of the assured have been submitted to by him and have been completed.

It might not be inconsistent with this provision to hold that when the formal proofs are waived by the company by á resort to an examination of the assured under oath before any such formal proofs are made, the money becomes payable immediately when such examination is concluded and no other or further proof of loss is demanded by the company. It might be urged in favor of this construction, that, if it were not so held, the company might delay payment for an indefinite period, by first proceeding to make examinations under oath, and continuing such examinations for days or weeks, and then demanding the formal proofs and refusing payment until sixty days after their receipt. Without, however, resorting to this construction of the policy, we think the action was not prematurely commenced. Giving the company the benefit of the construction, that, when the company waives the formal proofs and resorts to a personal examination of the assured under oath as to the circumstances of the loss, it is entitled to sixty days after the examinations are closed before payment can be enforced, the action was not prematurely commenced. The proofs show that the examination was closed, signed by the assured, and delivered to the general agent of the company (and, as we must presume, at his request) on the 16th day of January, 1878, and the action was not commenced until the 18th of March following. The sixty days expired on the 17th of March. The proofs having been delivered to the general agent of the company at Oshkosh, it was a waiver or the right to have the assured deliver them at Chicago, and the sixty days commenced to run at the time of such delivery.

As is very forcibly .urged by the learned counsel for tbe appellant: “ There could be but one delivery. "When the plaintiff delivered them to the agent of the company at Oshkosh, it was out of his power to make any other delivery. They had passed out of his possession, and were in the possession of the company.” And the fact that the agent of the company never sent them to the office at Chicago, but immediately delivered them to its attorney at Oshkosh, and they were retained by such attorney until the trial, is the most satisfactory evidence of a waiver of the delivery at the office in Chicago. Had they been delivered at the Chicago office, it is to be presumed they would have been immediately sent to its attorney at Oshkosh, as it clearly appears the company desired them to be in the hands of its attorney at that place, and not in the office in Chicago. The delivery of the proofs to the agent of the company, at his request, in the city of Oshkosh, was a waiver of the right to have them delivered at the office in Chicago. It was for the convenience of the company that they were delivered and retained at Oshkosh, and it is quite apparent that the company was not in any way prej udiced because they were not received at the office in Chicago.

By the Court. — -The judgment of the circuit court is reversed, and the cause remanded for a new trial.