Badger v. Glens Falls Ins. Co.
| Decision Date | 11 May 1880 |
| Citation | 5 N.W. 845,49 Wis. 389 |
| Parties | BADGER v. GLENS FALLS INS. CO. |
| Court | Wisconsin Supreme Court |
Appeal from circuit court, Winnebago county.
Action on a policy of insurance on household furniture destroyed by fire during the term of the policy. The plaintiff recovered, and the defendant appeals from the judgment. The contest relates solely to the sufficiency of notice and proofs of loss furnished by the defendant. The material portions of the policy are as follows:
“Persons sustaining loss or damage by fire shall forthwith give notice in writing of said loss to the company, and within 30 days render a particular account of such loss, signed and sworn to by them, stating the time, origin, and circumstances of the fire; the title, cash value of all encumbrances upon, and interest of claimant and all others in, the herein described property; the amount of loss or damage; all other insurance covering any of said property at any time since this policy was issued, and a copy of the written parts of all policies therefor; the change of title, use, occupation and possession, if any, of the insured property during the same time; whether there has been any increase of risk or hazard; * * and shall also produce a certificate, under the hand and seal of the chief of the fire department, or his assistant, if said property is situate within the jurisdiction of any such officer, and if not, then under the hand and seal of a magistrate nearest to the place of the fire, (not concerned in the loss as a creditor or otherwise, nor related to the assured,) stating he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount which such chief, assistant or magistrate shall verify.”
No notice in writing of the loss was given, but a few days after the fire the adjuster or general agent of the company examined the plaintiff and his wife, (although not under oath,) and from their statements made a full inventory of the property destroyed, and retained the same. Formal proofs of loss were afterwards furnished by the plaintiff, together with the required certificate of the chief of the fire department, at the time and under the circumstances stated in the opinion. The court directed a verdict to be returned for the plaintiff.Gabe Bouck, for respondent.
Charles W. Felker, for appellant.
In the case of this plaintiff against the Phœnix Insurance Company, of Brooklyn, (decided herewith,) for a loss caused by the same fire, we hold that the full examination of the plaintiff, under oath, concerning the loss, pursuant to a stipulation in the policy, is a waiver of the formal proofs of loss required by the policy. The authorities upon which that decision is made are probably broad enough to justify an application of the same rule to the present case. Here the plaintiff and his wife were fully examined (but not under oath) concerning the loss by the agent of the company, and a schedule of the property destroyed or injured was made by the agent on such examination and...
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