Engebretson v. Hekla Fire Ins. Co.

Citation58 Wis. 301,17 N.W. 5
PartiesENGEBRETSON v. HEKLA FIRE INS. CO.
Decision Date23 October 1883
CourtUnited States State Supreme Court of Wisconsin
OPINION TEXT STARTS HERE

Appeal from circuit court, La Crosse county.

Action upon a policy issued by the defendant company to the plaintiff, insuring him for one year from January 18, 1881, against loss or damage by fire or lightning to the amount of $1,000, on his stock of goods in a certain store therein described. The insured stock was destroyed by fire, July 19, 1881.

The policy required the defendant to render to the company, at its office in Madison, within 10 days after the fire, a particular statement of the loss, signed and sworn to by the assured, containing all the information he has of the origin and circumstances of the fire, and stating also (among other things) the exact nature of his title to the insured property, the interest of other parties therein, and the cash value thereof. It is further provided in the policy that no action thereon shall be maintainable against the company until after full compliance by the assured with all of the requirements therein contained.

No statement of the loss, as required by the policy, was furnished to the company at Madison until February 1, 1882, at which time such a statement was forwarded to the company at that place by the attorneys of the plaintiff. The same was immediately returned to the attorney, who sent it by the secretary of the company, who stated, in a letter inclosed with such statement, that it came too late, and for that reason, and sundry others, the company denied liability on the policy. Under date of February 3, 1882, the president of the company wrote the same attorneys, concerning plaintiff's claim, as follows: We have investigated the case, our adjuster having spent considerable time on it. He does not believe that the company is liable either in law or equity for any damages whatever, and, from the facts presented, I fully concur with him. We are ready at all times to pay just and legal claims.” The defendant, in its answer herein, pleads the failure to render such statement within the time required by the policy as a defense to the action.

The plaintiff claims that the obligation on his part to render such statement was waived by Peck & Norbeck, the local agents of the defendant company at La Crosse, who issued the policy. The testimony upon which alone such claim of waiver is predicated, is that of the plaintiff. This testimony is substantially stated in the brief of counsel for the plaintiff as follows:

“On Tuesday, the twentieth of July, 1881, the plaintiff notified the defendant of the loss, by notifying its local agent at La Crosse, who told him that it was all right, (meaning the loss;) that the adjuster would be around there, and he would get his money; that the adjuster would pay him in a few days; that they would notify the company and the adjuster at once, and the adjuster would come up there and pay him up.

On the twenty-sixth of July, 1881, the plaintiff again called on the defendant's local agent at La Crosse, to see about getting his insurance, and was informed by him that the adjuster was there, and was going out to see him; that Herdell, the adjuster, would be around, and pay him the money; that he was at La Crosse then, but had gone out of town a little; that the adjuster would come out to plaintiff's place, and that he would notify the plaintiff. The plaintiff hurried home that day to see him, but the adjuster did not come there.

About a week or ten days afterwards, the plaintiff again called on the defendant's local agent at La Crosse to see about getting his insurance, and asked him if he had seen the adjuster that was to come out and pay him the money, and the agent told him he was in Minnesota and would be back soon; that he did not know whether he would come up and see the plaintiff or not, but thought he would. In the evening of the same day, the plaintiff saw the agent in the street, and asked him about the insurance, and if he hadn't heard from the adjuster, and then the agent told him the defendant was not going to pay the plaintiff anything, because he did not have over one hundred dollars' worth of goods in the store at the time of the fire. This was the first intimation the plaintiff received or knowledge given him that the defendant did not intend to pay him.”

The plaintiff at the close of his testimony summed up the whole of the conversations as follows: “I understand Peck to be the agent of the company; he promised to write to the company for me. I don't know if Norbeck did it, or him. He said the man would come out to my place, and would straighten up with me--see me straightened up and figure up with me--straighten up; something like that he said--straighten up the case with me, he said. I don't remember if he said straighten up with me or pay me up, or anything of the kind. I don't remember it. * * * Peck said the man was going out to my place and straighten up with me; pay me up, or let me get my money; something like that.”

On motion of defendant's counsel made at the close of plaintiff's testimony, and after he had rested his case, the circuit court ordered a nonsuit,...

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13 cases
  • Kisting v. Westchester Fire Insurance Company, 67-C-27.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • October 2, 1968
    ......Thus in Engebretson v. Hekla Fire Insurance Co., 58 Wis. 301, 17 N.W. 5 (1883), where the insured filed his proof of ......
  • Nickell v. Phoenix Insurance Company of Brooklyn
    • United States
    • United States State Supreme Court of Missouri
    • June 8, 1898
    ...Co., 121 Mass. 441; Kyte v. Com. Un. Ass. Co., 144 Mass. 43; Shapire v. Ins. Co., 63 N.W. 614; Kahn v. Ins. Co., 34 P. 1059; Engerbertson v. Ins. Co., 58 Wis. 301; Von Genetchen v. Ins. Co., 75 Iowa 544. (2) devolves upon the plaintiff to prove that the local agent, who he claims made the w......
  • McFarland v. United States Mutual Accident Association
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1894
    ...29 Pa. St. 198; Mueller v. Ins. Co., 87 Pa. St. 399; Maddox v. Ins. Co., 39 Mo.App. 204; Weidert v. Ins. Co., 19 Or. 261; Engelbritain v. Ins. Co., 58 Wis. 301; Knudsen v. Ins. Co., 75 Wis. 198; Connell v. Ins. Co., 18 Wis. 387; Blossom v. Ins. Co., 64 N.Y. 162; Blakely v. Ins. Co., 20 Wis.......
  • McCullough v. The Phoenix Ins. Company
    • United States
    • United States State Supreme Court of Missouri
    • January 31, 1893
    ...Co., 39 Mo.App. 198; Leigh v. Ins. Co., 37 Mo.App. 542; Hanna v. Ins. Co., 36 Mo.App. 538; Colonias v. Ins. Co., 3 Mo.App. 56; Engebretson v. Ins. Co., 58 Wis. 301; Blossom Ins. Co., 64 N.Y. 162; Pettingill v. Hinks, 9 Gray, 169; Williams v. Ins. Co., 19 Insurance Law Journal, 26. Second. T......
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