Angier v. Western Assurance Co

• Decision Date: 16 June 1897
• Citation: Angier v. Western Assurance Co, 66 Am.St.Rep. 685, 10 S.D. 82, 71 N.W. 761 (S.D. 1897)
• Parties: ANGIER et al., Plaintiff and respondent, v. WESTERN ASSURANCE CO., Defendant and appellant.
• Court: South Dakota Supreme Court

10 S.D. 82

71 N.W. 761

ANGIER et al., Plaintiff and respondent,

v.

WESTERN ASSURANCE CO., Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Jos. W. Jones, Judge Affirmed C. S. Palmer, McDonald & Fauntleroy Attorneys for appellant. U. S. G. Cherry Attorney for respondent. Opinion filed June 16, 1897

CORSON, P. J.

This is an action upon a fire insurance policy. A verdict was directed for the plaintiffs, and the defendant appeals. The complaint is in the usual form, and contains among other things, the following allegations:

“That on or about the 24th day of April, 1895, the said defendant, by and through his duly authorized officers and agents, denied and disclaimed all liability whatsoever under said policy, and refused to pay the same or any part thereof. … That, immediately after said fire and destruction of said property, the plaintiffs gave said, defendant due notice, and thereafter made, executed and delivered to the defendant due and regular proof of said fire and loss, which proof was made and delivered on the 8th day of May, A. D. 1895, and was in words and figures following, to-wit: …”

The answer of defendant admits that proofs of loss were furnished, but denies that the plaintiffs complied with the terms and conditions of said policy; and it alleges that, upon receipt of proofs of loss, it immediately objected to the same, and notified the said plaintiffs that they were insufficient, and did not comply with the terms of the said policy, in that they did not state the knowledge and belief of said insured as to the origin of said fire, and that the plaintiffs refused and neglected to furnish other proofs. And, for a second defense to said cause of action, the defendant alleges, in effect, that the plaintiffs caused the loss of the building by using kerosene oil in making a fire upon the insured premises, and that, by reason of said unlawful acts of the said plaintiffs, the hazard and damages to said property, being destroyed by fire, was greatly increased by said means and acts, and that it was by reason of such unlawful acts that the building was destroyed by fire. It will thus be seen that the defendant bases its defense to plaintiffs’ action upon two grounds, namely, failure to furnish proper proofs of loss, and increase of hazard by reason of the use of kerosene oil on the premises in the manner detailed in the answer. The two questions will be considered in the order above named.

The proofs of loss were forwarded within the proper time, and stated that “a fire occurred on the 24th day of March, A. D. 1895, … and originated as follows, viz.: Caught from stove.” The policy provides that proofs of loss shall state “the knowledge and belief of the insured as to the time and origin of the fire.” Appellant contends that this statement was insufficient. Plaintiffs make three answers to appellant’s contention:

(1) They insist that the statement in the proofs of loss was sufficient.

(2) That the plaintiff’s had, prior to the proofs of loss being forwarded, made a full and complete statement of all the facts relating to the origin of the fire to the duly authorized agent of the defendant.

(3) The defendant had waived proofs of loss by the declaration of their authorized agent, that the company absolutely refused to pay the loss, and by failure to notify the plaintiffs, within a reasonable time after the receipt of the proofs of loss, that the defendant objected to them.

The building was destroyed by fire, as will be seen, March 24, 1895, and the proofs of loss were forwarded by mail May 8, 1895, and were received by the defendant May 10th. The defendant made no objection to these proofs until May 28th, 18 days after their receipt, and five days after the expiration of the sixty days in which proofs were to be furnished. Section 4178, Comp. Laws, provides:

“All defects in a notice of loss, or in preliminary proof thereof, which the insured might remedy and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived.”

There was no evidence offered to explain the delay in making the objection to the proofs in this case, and a delay of 18 days, unexplained, must be held to be unnecessary delay. The defect, if any, in the proofs, was waived, and the proofs were properly admitted in evidence. Again, it clearly appears, both from the evidence of plaintiff Stevens and the letter calling for a more specific statement as to the origin of the fire, that the authorized agent of the defendant had denied the liability of the defendant for the loss. In the letter of May 28th, Mr. Crandall, writing for the company, says:

“You are further advised that if the verbal statement made to me, in the presence of Mr. Allen and his clerk, regarding the origin of the fire, is true, to-wit, that it originated by pouring kerosene oil into the stove in which a fire had been started, then and in that case this company denies any and all liability under said policy, and you can commence your action to recover as soon as you think best.”

The company therefore had full knowledge of the origin of the fire, and also, by its denial of liability, waived further proofs of loss.

The second defense is based upon the following stipulation in the policy:

“This entire policy shall be void … if the hazard be increased by any means within the control or knowledge of the insured, … or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above described premises, … phosphorus or petroleum, or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be used for light, and kept for sale according to the law, but in quantities not exceeding five barrels provided it be drawn and lamps filled by daylight, or at a distance not less than ten feet from artificial light.”

Sec. 4175, Comp. Laws, provides:

“An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by of the insured, or of his agents or others.”

The facts in regard to the origin of the fire are thus stated by the plaintiff Stevens on cross examination, and are undisputed:

“I took a tomato can, maybe two-thirds or half full of kerosene oil, and put some of the oil on the kindling. I turned to strike a match to set it afire. I had on a pair of celluloid cuffs, and the flame caught on my cuffs, and in a moment they blazed up. I had the can in my left hand and it fell on the floor, and the fire caught in the stove the same time. I rushed out and tried to get my coat off.

Q. And the whole thing caught fire and burned up?

A. Yes.

Q. How much oil would that tomato can hold?

A. A pint or so. …

Q. You put the oil on the wood, and struck a match for the purpose of lighting this coal oil?

A. Yes, Sir.

Q. And it fell on your celluloid cuff you say?

A. Yes, sir.

Q. And that set fire to the cuff, and the fire fell down on the oil in the stove?

A. Yes, sir.”

As will have been observed, there is no clause...