American Cent. Ins. Co. v. Hathaway

• Decision Date: 08 March 1890
• Citation: 43 Kan. 399,23 P. 428
• Parties: THE AMERICAN CENTRAL INSURANCE COMPANY v. ELMER HATHAWAY
• Court: Kansas Supreme Court

23 P. 428

43 Kan. 399

THE AMERICAN CENTRAL INSURANCE COMPANY v. ELMER HATHAWAY

Supreme Court of Kansas

March 8, 1890

Error from Sumner District Court.

THE case is stated in the opinion.

Judgment reversed and cause remanded.

Rossington Smith & Dallas, and Isaac G. Reed, for plaintiff in error.

George & King, and McDonald & Parker, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

At the February term, 1889, of the Sumner district court, the defendant in error, as plaintiff, recovered a judgment for $ 1,080.50 against the defendant, a fire insurance company located at St. Louis, Missouri. The company had insured the plaintiff against loss by fire on merchandise, and other personal property in his store at Caldwell, Kansas, for $ 1,000. The store and its contents were burned on the 8th day of October, 1885. This action was brought upon the policy issued, alleging compliance with all its conditions by plaintiff. The answer was a general denial.

While there is quite a volume of testimony tending to throw suspicion upon the origin and circumstance of the fire, and also that there was not personal property to the value of $ 1,000 consumed, yet the question discussed by the briefs of the parties is, whether sufficient proof of loss had been given to the company as required by the terms of the policy or waived by the actions and statements of its agent. A day or two after the fire, Dave Rorick, the general adjuster of claims for the company, came to Caldwell and looked over the ground where the building had been located. There is a conflict of testimony concerning what he did and said at that time; the plaintiff's testimony tending to show that he stated that if the proofs were furnished there at Caldwell, he would come back and settle for the loss; the defendant denies that any such statement was made, or anything that could be construed into a waiver.

Among the conditions of the policy were the following: That the insured should give, under oath, a particular account of the loss, what property was destroyed or damaged, state the time, origin and circumstance of the fire, and produce a certificate, under the seal of a magistrate, notary public, or commissioner of deeds nearest the place of the fire, and not concerned in the loss or related to the insured, stating that he had examined the circumstances attending the loss, and believed that the assured had, without fraud, sustained loss on the property insured to the amount such officer should certify to; and it was stipulated therein that the loss sustained should be paid within sixty days after such proof and statement had been received at the head office of the company, in St. Louis, Missouri.

At the trial the plaintiff offered in evidence a copy of the items of the property consumed, and of his verification thereto, as proof of his loss. This was objected to as being secondary evidence, and because no proper ground had been laid for its introduction. The plaintiff testified that on the 23d day of October, 1885, he placed this statement, a copy of which he had in court, in the Caldwell post office, directed to the company at St. Louis, with postage prepaid; he further offered Rorick, general adjuster of the company, as a witness, who testified that it had never been received at the home office in St. Louis. The plaintiff never made a demand of the company for the statement sent, nor a copy thereof.

Besides the general verdict in favor of plaintiff, the jury made special findings of fact, the following of which are pertinent to the objections made by the plaintiff:

"4. Did the plaintiff render to the defendant a particular account under oath of the loss claimed to have been sustained? A. Yes.

"5. If you shall answer question number four in the affirmative, was the account therein mentioned received by the defendant at its head office in St. Louis, Missouri? A. We do not know."

"8. Has the defendant waived any of the conditions of said policy relating to the proceedings of the assured after a loss thereunder? A. Yes.

"9. If you answer question number eight in the affirmative, state each and every condition that you may find has been so waived. A. By the special agent of the company Dave Rorick, being on the ground after the fire, about October 12th or 13th, 1885, he waived the notice required by policy to be in writing.

"10. If you...