Bowlin v. Hekla Fire Insurance Company
| Decision Date | 21 February 1887 |
| Citation | 31 N.W. 859,36 Minn. 433 |
| Parties | P. J. Bowlin v. Hekla Fire Insurance Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of the district court for Carlton county, where the action was tried by Stearns, J and a jury.
Order reversed.
J. W Lusk, for appellant.
Hawkins & Oldenberg and White & Reynolds, for respondent.
The policy of insurance sued on contains a provision that, when a loss occurs under it, the assured "shall forth with give notice in writing of said loss to the company, and within thirty days thereafter render a particular account by separate items, and proof thereof, signed and sworn to by the assured," as therein specially set forth. This is one of the provisions which are expressly made part of the contract to be resorted to in order to determine the rights and obligations of the parties. It is also provided that payment of a loss shall be made within "sixty days after the proofs of the same required by the company shall have been made by the assured, and received at the home office, and the loss shall have been ascertained and proved in accordance with the terms and provisions of this policy," unless the property be replaced, or the company shall give notice of its intention to rebuild, etc.; and compliance with these provisions is made essential to a right of recovery under the contract.
The several provisions above referred to must be read together, and it is manifest that compliance therewith on the part of the assured as to time, as well as in other respects, is a necessary condition precedent to the right of recovery, unless a waiver on the part of the company is shown. Smith v. Haverhill, etc., Ins. Co., 1 Allen 297, (79 Am. Dec. 733;) Home Ins. Co. v. Lindsey, 26 Ohio St. 348; Gies v. Bechtner, 12 Minn. 183, (279;) 2 Wood, Fire Ins. § 438.
In the case at bar no notice of the loss is shown to have been given, nor was any proof of loss forwarded to the company, until long after the expiration of the time provided therefor by the policy. The plaintiff, however, relies upon an alleged waiver of the conditions and requirements of the policy.
The evidence to establish such waiver consists solely of certain alleged statements and assurances of the local agent who took the risk and through whom the policy was issued, made to the attorney of the plaintiff in conversations between them within the 30 days next succeeding the fire. The court below determined that the company was bound by the language and conduct of the local agent in the premises, and the jury found for the plaintiff.
The authority and duty of the local agent, as proved by the plaintiff himself on the trial, show very clearly, we think that he was not a general agent of the company, and that his authority did not extend to the adjustment or settlement of losses, and that he had no power to bind the company as respects such proceedings under the policy. The proofs must necessarily be forwarded to the "home office," and delivering them to the local agent would not bind the company; and there is nothing in the policy, or in the evidence adduced by plaintiff, tending to show that he had any authority or responsibility, in respect to any negotiations or transactions between the assured and the company, about the proof or settlement of the loss. The plaintiff's evidence shows, and there is no testimony inconsistent with it, that he had authority to issue policies and fix rates, subject to the approval of the company, and that his instructions were to have nothing to do with a loss except to report it. There is nothing to show that the...
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