Bromberg v. Minn. Fire Ass'n of Minneapolis

• Decision Date: 09 February 1891
• Citation: 47 N.W. 975,45 Minn. 318
• Parties: BROMBERG ET AL. v MINNESOTA FIRE ASS'N OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

45 Minn. 318

47 N.W. 975

BROMBERG ET AL.vMINNESOTA FIRE ASS'N OF MINNEAPOLIS.

Supreme Court of Minnesota.

Feb. 9, 1891.

(Syllabus by the Court.)

1. By comparison of the allegation of the complaint in an action on a fire insurance policy, as to the date of the loss and the date of furnishing proof of loss, with the provision of the policy as to the time within which such proof should have been furnished, it appeared that it was furnished one day too late. Held, that the objection to the admission of any evidence in the case on the ground that the complaint failed to state a cause of action, the evidence being plenary that proof of loss was seasonably furnished, was not sufficiently specific to call the attention of the court to the defect.

2. Where the insurer, in response to notice of loss, sent to the insured a blank, apparently designed to be used in making proof of loss, and the insured so used it, filling it up with all the particulars of the loss of which the blank admitted, and sent it to the insurer, who retained it without objecting to its sufficiency, the insurer will be held to have waived the objection that it was not itemized with the detail required by the policy.

3. One of the defenses being that the policy had been avoided by the putting of a mortgage on the property covered by the policy by one of the assured, but there being no allegation in the answer that the property insured was not correctly described in the policy, parol testimony was not admissible to show that property not described was intended to be included, but was omitted from the policy by mistake, and, further, that its owner, one of the assured, had mortgaged the property thus omitted.

Appeal from district court, Kittson county; MILLS, Judge.

P. C. Schmidt, for appellant.

H. Steenerson, for respondents.

COLLINS, J.

This action was brought to recover upon a fire insurance policy issued to Bromberg and Nelson by defendant under its former corporation name. To the complaint there was attached a copy of the policy in which appeared the usual provision requiring the assured, in case of loss, to give immediate notice thereof to the association, and to make proof in a certain way within 30 days afterthe loss. The fire was averred to have occurred on April 30th. To the allegation that plaintiffs had performed all of the conditions of the policy on their part, and had furnished due notice and proof of the loss on the 31st day of May, the defendant answered by denying due performance of the conditions, but admitting that the plaintiffs did, some time in the month of May, give to defendant notice of a fire, and did serve on it pretended proof of their loss by fire, of the property described in the complaint, claimed and pretended to be covered by the policy. On the trial it appeared that, immediately after the fire, defendant was informed of it by letter, and there came by mail at once a blank form which plaintiffs filled out, and after making oath to its correctness, remailed to the defendant's office at Minneapolis. In response to a written demand that defendant produce plaintiffs' application for insurance, “proof of loss, and notice of loss,” this document and the application were handed over and offered in evidence as part of plaintiffs' case. The defendant objected to the so-called “proof of loss,” on the ground that it was incompetent, irrelevant, and immaterial, as well as inadmissible under the pleadings. No further attempt was made by plaintiffs to show a compliance with that clause in the policy requiring proof of loss to be made within 30 days, and when plaintiffs rested, defendant moved that the court direct a verdict in its favor, particularly because no proof of loss had been made as required, which motion was denied. The plaintiffs relied upon this paper as proof of loss, while defendant contends that it was merely notice of loss. The paper was gotten up by the defendant, and in this case forwarded by it to plaintiffs in reply to a notice that a portion of the insured property had been destroyed by fire. Printed interrogatories were found therein, designed to be and which were answered by the assured in the blank spaces left for the purpose. These answers were as to the date and number of the policy, the amount of the insurance in the aggregate, the amount on each of the articles said to have been destroyed, with the loss on each, total cash value, ownership of the property, supposed origin of the fire, and other matters in reference to the loss, required by the terms of the policy. Little skill was needed to fill out the blank, and in it would then be found everything demanded by the terms of the policy, except, perhaps, in some matters of detail. It is evident from the blank itself, and the manner in which it was completed by plaintiffs, that all of the information required by defendant was fully furnished under oath. Although printed upon the back of this paper were the words “Notice of loss,” we have no doubt that it was sent for the express purpose of having it filled out and used as proof of loss, that...