Aurora Fire & Marine Insurance Co. v. Kranich

• Decision Date: 18 April 1877
• Citation: 36 Mich. 289
• Court: Michigan Supreme Court
• Parties: The Aurora Fire & Marine Insurance Company v. Elizabeth Kranich

36 Mich. 289

The Aurora Fire & Marine Insurance Company v. Elizabeth Kranich

Supreme Court of Michigan

April 18, 1877

Heard April 6, 1877

Error to Superior Court of Detroit.

Judgment affirmed, with costs.

Otto Kirchner, for plaintiff in error, cited.--Campbell v. Charter Oak Ins. Co., 10 Allen 213; N. Y. Central Ins. Co. v. Watson 23 Mich. 486; Security Ins. Co. v. Fay, 22 Mich. 467. He argued that the failure to furnish proofs of loss within the time prescribed, and the violation of the provision as to the property becoming vacant or unoccupied, were complete defenses unless there had been a waiver by conduct which had misled plaintiff to her prejudice.

1. There was no evidence of waiver of the condition as to occupation of the insured premises. It is immaterial whether the agent knew the premises were vacant at the time of issuing the original policy. During the time that contract was in force, no loss occurred, and no claim is made under it. Each renewal was a separate contract, and the rights of the parties must be viewed with reference to the facts as they existed at the times these were effected. Ryman was the last occupant, and the company's agent had notice of his occupancy and was never informed of his removal; and yet the court left it to the jury to say whether the agent knew the premises were unoccupied when the last contract for insurance was made. There was no evidence to support such a charge but, on the contrary, all the evidence tended in the opposite direction.

2. There was no waiver of proofs of loss. The mere expression by the agent to the insured of his opinion that "the company was not allowed to give (her) any thing because the policy said (she) should notify the company if there was any body in the house, and that they did not owe (her) a cent," was not a refusal to pay upon the sole ground that the premises were not occupied as required by the policy, because no demand for payment was made and no money was then due. There was no evidence of any refusal on the part of the company to pay, based upon the ground that the premises were not occupied, until sixty days after the proofs had been sent, and long after the time limited for making them had expired. And the insured premises were described in the policy as "occupied by a tenant."

Moore, Canfield & Warner and Hoyt Post, for defendant in error, as to proofs of loss, called attention to the fact that the policy requires the assured to "forthwith give notice" and "in thirty days deliver" the prescribed proofs of loss, and does not in terms require the proofs to be furnished in thirty days from the date of the loss; and proofs were furnished within thirty days from notice, and the notice was within a reasonable time. And the policy nowhere provides that failure to furnish the proofs within the required time shall defeat the policy, while failure to perform other conditions specified are expressly made to absolve the company from all liability. This provision should be literally construed.

But if the provision is binding and imperative and open to the construction claimed for it by the company, it was waived by the action of the company's agents, by their action in basing their claim that the company was not liable on the policy, upon the sole ground of the vacancy of the premises. Such provisions may be waived, even after forfeiture.--29 Mich 241; 57 Barb. 518; 5 Lans. 275; 25 Mich. 56; 4 How. (Miss.), 567; 20 Ill. 557; 2 N. H., 341; 4 Bing. N. C., 229; Chitty on Bills, 501.

The want of occupancy of the premises under the facts did not operate as a forfeiture of the policy. There was sufficient evidence to show a waiver by the company of this condition. The company's agent knew at the time of issuing the policy that there was nobody living in the house; and the company was bound by the acts of its agent; and his knowledge respecting the occupancy of the premises was the knowledge of the company.--12 Mich. 203, and cases cited; 21 Mich. 246; 22 Mich. 159; 30 Mich. 41; 33 Mich. 143, and cases cited. And a waiver under the original policy extends to all subsequent renewals thereof.--People's Ins. Co. v. Spencer, 53 Penn. St., 353; but the agent, moreover, had like notice at the time of issuing the subsequent renewals. The question of waiver was one of intent, and was properly submitted to the jury under the evidence, and their finding is therefore conclusive.

OPINION

Marston, J.

Defendant in error brought her action to recover a loss under a policy of insurance issued and delivered by plaintiff in error, April 12, 1872, and renewed annually thereafter, the last renewal being April 12, 1875, which continued the policy in force one year from that date. The two principal facts relied upon as a defense were, first, a failure to furnish proofs of loss according to the terms of the policy, and second, that at the time of the loss, August 12, 1875, the buildings insured were vacant and unoccupied. The provisions of the policy applicable to these defenses were as follows:

"Such loss to be payable at their [the defendant's] office in Cincinnati, Ohio, in sixty days after the proofs thereof satisfactory to this company [defendant], made and provided by the assured in accordance with the requirements of this policy, are received at said office of the company."

"The assured shall forthwith give notice to the [defendant] company of any loss, and in thirty days deliver at the office of the company in Cincinnati, Ohio, either personally or by agent, mail or express, a detailed inventory and particular account in writing of such loss, signed and sworn to by him, stating what particular property has been lost or damaged, and what the loss or damage consists in, and whether any and what other insurance has been made on the property, and building containing the property insured; about the cash value at the time of the loss of the subject insured; the interest of the assured; in what general manner (as to trade, manufacture or otherwise) the building insured or containing the property insured, and several parts thereof, were occupied at the time of the loss; and who were the occupants of such building; and copies of the written portions of all policies thereon."

"If at any time during the continuance of this policy, * * * the insured property, or buildings containing the same or any portion thereof, shall become vacant or unoccupied; * * * this company shall be absolved from all liability under this policy."

The charge of the court b in reference to waiver of proofs of loss by the company was, as to the facts referred to therein, fully sustained by the evidence introduced on the trial. The law is well settled, we think, that the company may waive strict compliance with the policy in this respect, and that where the company does, either in express terms waive proofs of loss, or by a...