Burlington Ins. Co. v. Miller

• Decision Date: 12 February 1894
• Docket Number: 346.
• Citation: 60 F. 254
• Parties: BURLINGTON INS. CO. v. MILLER.
• Court: U.S. Court of Appeals — Eighth Circuit

60 F. 254

BURLINGTON INS. CO. v. MILLER.

No. 346.

United States Court of Appeals, Eighth Circuit.

February 12, 1894

A. B Quinton and E. S. Quinton, for plaintiff in error.

U. M Rose, W. E. Hemingway, and G. B. Rose, for defendant in error.

Before SANBORN, Circuit Judge, and THAYER, District Judge.

THAYER District Judge.

The plaintiff in error was sued in the circuit court of Jefferson county, Ark., on a policy of insurance which it had theretofore issued to Sophia Miller, the defendant in error insuring her in the sum of $2,900, for the term of one year, against loss and damage by fire to certain property situated in the town of Pine Bluff, Ark. The defendant company removed the case to the United States circuit court for the eastern district of Arkansas, where there was a trial before the court, a jury having been waived, and a judgment against the insurance company in the sum of $3,001. To reverse that judgment it has sued out the present writ of error. It appears from the record that the complaint on which the case was tried was an ordinary declaration on an insurance policy. The complaint averred that on April 29, 1891, the defendant company had executed and delivered to the plaintiff its certain contract of insurance, the substance of which was fairly stated according to its legal effect; that on March 15, 1892, while the policy was in force, the property covered by the policy had been totally destroyed by fire; that the plaintiff had duly fulfilled all of the conditions of insurance on her part, and that the loss sustained, amounting to $2,900, had not been paid. The defendant filed an answer to the complaint, wherein it pleaded specially that the plaintiff had violated several of the provisions of the policy. Among other things, the answer averred that the policy contained a provision to the effect that, in case of loss, the assured should give immediate notice of the loss to the company, in writing, and within 30 days thereafter should deliver to it 'a particular account of said loss, under oath, stating the time, origin, and circumstances of said fire,' etc. The answer further averred that the plaintiff had failed to give the notice required by the aforesaid condition, and had failed to make and deliver proofs of loss within the aforesaid period of 30 days, and had failed to furnish any proofs of loss whatever. No reply was filed to the aforesaid special plea. On the trial of the case, certain oral and written evidence was introduced by the plaintiff, which clearly showed that the defendant company, by its dealings with the plaintiff subsequent to the fire, had waived the aforesaid provision of its contract touching notice and proofs of loss, and that it was also estopped from insisting upon a violation of that provision as a defense to the action.

The only assigned error in the record that we are called upon to review is whether the trial court properly admitted the oral and written testimony above referred to. It is insisted, in behalf of the plaintiff in error, that the testimony in question was improperly admitted, because the plaintiff had neither pleaded a waiver nor an estoppel in response to the new matter stated in the answer with reference to the violation of the condition with respect to notice and proofs of loss. There are two good and sufficient reasons why the exceptions taken to the admission of such testimony cannot prevail in this court. As the pleadings were framed when the case went to trial, the defendant admitted the execution and delivery of the contract as described in the complaint, but averred specially, by way of confession and avoidance, that the plaintiff was not entitled to recover, because of a noncompliance with one of the conditions of the contract. In most of the states, no doubt, it would have been the duty of the plaintiff to have filed a reply to the new matter alleged in the answer, if she intended to show a state of facts constituting an estoppel in pais or a waiver of the condition of the policy. But, under the Arkansas Code, a plaintiff is not allowed to file a reply to new matter contained in the answer unless the new matter alleged constitutes a set-off or a...