Bernhard v. Rochester German Ins. Co.

Decision Date18 December 1906
Citation65 A. 134,79 Conn. 388
CourtConnecticut Supreme Court

Appeal from Superior Court, Fairfield County; Alberto T. Roraback, Judge.

Action by Tobias Bernhard against the Rochester German Insurance Company. From a judgment for plaintiff on findings by the court defendant appeals. Affirmed.

Stiles Judson, for appellant Nichols C. Downs, for appellee.

PRENTICE, J. The defendant Issued its policies to the plaintiff upon his dwelling house and its contents. A fire occurred. The insured is now seeking to recover upon the policies on account of the loss thereby occasioned. The facts found disclose (1) that the required proofs of loss were not furnished to the defendant within the time prescribed therefor; and (2) that no award has been made by the appraisers to whom the ascertainment of the amounts of loss had, prior to the suit, been submitted. The defendant contends that each of these facts is sufficient to preclude the plaintiff's recovery. In answer to the objection that proofs of loss were not seasonably furnished, the plaintiff says that the defendant waived compliance with the conditions contained in the policies in respect to the presentation of such proofs, and is now estopped from taking advantage of any failure in that regard. As bearing upon this subject the facts found are: That the plaintiff, upon the morning following the fire, orally notified the defendant's local agent, who immediately, and upon the plaintiff's request, notified the company's home office by telegram; that shortly thereafter a general agent of the defendant named Eastman visited the plaintiff and the burned premises, advising the plaintiff that he, Eastman, had been sent to adjust the loss. That, at said interview, Eastman, after making a careful examination of the premises and being informed by the plaintiff that he was the sole owner of the property free of incumbrances, how it was occupied before the fire, and as to his knowledge as to the time and origin of the fire, requested the plaintiff to make a detailed statement of his loss and damage to the personal property. That the plaintiff pursuant to such request, prepared a full and complete written statement of the articles damaged, including therein their cost and the amount of damage claimed, and the same was, within a week after the fire, presented by him to Eastman. That, after the latter's examination thereof, the plaintiff inquired of him if there were any other papers or writings to be made or signed by him, to which inquiries Eastman replied: "No; this is sufficient. This is all I want There are no other papers for you to make out I will attend to all the rest." That thereafter matters relating to the adjustment of the loss proceeded, and the parties, the company acting through Eastman, joined in submissions to appraisers and an umpire of the ascertainment of the loss as provided in the policies. That the plaintiff was, by these statements and this conduct of Eastman, induced to believe, and did believe, that no further proofs of loss would be required of him and that his loss, when ascertained, would be paid without further action on his part, and that the first intimation he had to the contrary was on or about July 1, 1901, some six months after the fire, when Eastman angrily told him that he would never get a cent. The court was clearly justified upon these facts in finding a waiver of the conditions of the policy requiring the presentation by the insured within 60 days after the fire of the prescribed proofs of loss as a condition precedent to the right of recovery, if Eastman's action was binding upon his principal. In his relations with the plaintiff, who had no notice of any limitation upon his apparent authority other than those contained in the policies, Eastman, as the ostensible general agent of the defendant and its representative delegated to adjust the plaintiff's loss, stood in its place as to all the matters involved in the adjustment, and had full power to waive any of the conditions of the policies relating thereto save as provisions in the policies may have imposed some restraint upon him. The only provision in the present policies which are, or can be, relied upon as making ineffectual as against the defendant any words or acts of Eastman which would otherwise accomplish a waiver is that which states that "no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto." This branch of the case is thus made to resolve itself into a question as to the efficacy of this provision as a shield to the defendant as against the natural consequences of the recited conduct of Eastman.

The books are filled with cases which have dealt with this subject. In not a few it has been held that the limitations contained in the recited paragraph are applicable to those conditions of a policy alone which enter into the contract defining the risk assumed, and are not applicable to those which are inserted for the assured's information and guidance in the adjustment of a loss after one has occurred and the liability of the insurer has in a sense become fixed. Royal Ins. Co. v. Martin, 192 U. S. 149, 24 Sup. Ct. 247, 48 L. Ed. 385; O'Brien v. Ohio Ins. Co., 52 Mich. 131, 17 N. W. 726; German Ins. Co. v. Gueck, 130 Ill. 345, 23 N. E. 112, 6 L. R. A. 835; Lebanon Fire Ins. Co. v. Erb, 112 Pa. 149, 4 Atl. 8; Campbell v. American Fire Ins. Co., 73 Wis. 100, 40 N. W. 661; Boyd v. Cedar Rapids Ins. Co., 70 Iowa, 325, 30 N. W. 585; Germania Fire Ins. Co., v. Pitcher, 160 Ind. 392, 64 N. E. 921, 66 N. E. 1003; Siegle v. Phoenix Ins. Co., 107 Mo. App. 456, 81 S. W. 637. Color is lent to this position by the provisions of the present standard policies expressly authorizing the company's representative to extend the time for the submission of proofs of loss by any writing and regardless of whether or not that writing be indorsed upon of attached to the policies. Here is thus to be found not only a failure to rely upon the general provision under discussion, but also a departure therefrom. With respect to conditions which were conceded to be pertinent to the defense interposed, a great variety in the method of treatment is presented in the numerous cases and a great variety of doctrines might be held to be countenanced in them. Some recognize a distinction between those conditions as to which the power of waiver is in terms denied to the company's officer, agent, or representative concerned, and those as to which the power of waiver is permitted to the representative, but he is restricted as to the manner in which he may exercise the power, as that any waiver to be effectual must be made in writing and indorsed upon, or attached to, the policy. Some, in giving effect to a waiver which the terms of a policy exclude, attach importance to the quality or rank of the agent or representative whose acts are involved. Some rest the effectiveness of such a waiver upon an estoppel brought home to the company itself; others to one arising directly from the conduct of some proper agent or representative; while not a few seem to give effect to a waiver pure and simple. Concerning the latter class of cases it should be observed that, while waivers and estoppels are theoretically very different things and the distinction between them is one easy to preserve when express waivers are under consideration, it is nevertheless true that the dividing line between waivers implied from conduct and estoppels oftentimes becomes so shadowy that, in the law of insurance, the two terms have come to be quite commonly used interchangeably. When the term "waiver" is so used, however, the elements of an estoppel almost invariably appear, and it is quite apparent that it is employed to designate, not a pure waiver, but one which has come into an existence of effectiveness through the application of the principles underlying estoppels. With this fact in mind, the apparent difference between certain of the cases becomes one of terms rather than of fundamental principle. The very few cases of which this is not true, and in which the power of waiver expressly withheld by the terms of the contract appears to be accorded to agents and representatives without the intervention of an estoppel, may well, we think, be dismissed from consideration as standing upon an unstable foundation.

For present purposes there is no occasion for further examining the long line of cases referred to for the purpose of discovering what principles of special application appropriate to situations more or less similar to that before us are deducible therefrom and of determining which of them meet with our approbation, since the facts of the present case reveal such a situation and bring that situation so directly home to the defendant itself that the elemental principles of estoppel simply applied suffice, without reference to any other special considerations, to compel the conclusion that Eastman's waiver of the presentation by the plaintiff of the prescribed proofs of loss, although evidenced by no writing, was one which his principal should not now be permitted to disclaim. Eastman was sent out to the world and to the plaintiff as endowed with those comprehensive powers which attach to a general agent, and to him was delegated the duty of representing the defendant in the adjustment of the plaintiff's loss. His knowledge, in the absence of any provision in the policies to the contrary, became the knowledge of his principal. McGurk v. Metropolitan Life Ins. Co., 56 Conn. 528, 539, 16...

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