California Ins. Co. v. Gracey

• Decision Date: 30 June 1890
• Citation: 24 P. 577,15 Colo. 70
• Parties: CALIFORNIA INS. CO. v. GRACEY.
• Court: Colorado Supreme Court

24 P. 577

15 Colo. 70

CALIFORNIA INS. CO. v. GRACEY.

Supreme Court of Colorado

June 30, 1890

Appeal from district court, Arapahoe county.

Mrs Gracey, appellee, entered into a contract of insurance with the California Insurance Company, appellant, covering furniture and other personal property belonging to and used by her in keeping in a boarding house in the city of Denver. The building, together with the personal property insured were afterwards destroyed by fire. Notice of the loss was duly given to appellant, and proof thereof was attempted to be made. Neither the amount claimed, nor any part thereof was paid; and the present suit was instituted to collect the same.

J. W. Horner, for appellant.

O E. Le Fevre, for appellee.

HELM C.J., ( after stating the facts as above.)

It is stated by counsel for appellant that the question for adjudication in this court is, was the suit prematurely brought? The contract of insurance provides that the sum due, in case of loss, shall be 'paid sixty days after due notice and proof of the same, made by the assured, is received at the office of this company.' By the pleadings and briefs, it is admitted that in the present case the 60 days thus provided for after proof of loss did not elapse before the suit was brought. But the amended complaint and the replication contain averments intended to show that appellant, by its conduct, waived the right to insist upon compliance with this condition of the contract. It is therein asserted that appellant, through its agent, denied all liability, and positively refused to make payment, declaring that appellee would have to bring her suit therefor. The position is strenuously relied on that, in view of this fact, appellee was not bound to wait the 60 days, or any other particular length of time, before instituting her suit. In response, it is asserted-- First, that the agent did not positively and absolutely refuse payment of the claim, or tell appellee that she would have to bring suit therefor; second, that the agent was wholly without any authority to bind the company by such declarations, even if made; and, third, that, as a matter of law, such a refusal by the company itself would not entitle appellee to sue before the expiration of the 60 days. These positions will be considered, though not in the strict order of their statement.

We must hold that the averments of the complaint and replication in this regard are fairly sustained by the proofs. The weight of evidence is decidedly against appellant. Four witnesses besides appellee testify that Pratt, the agent alluded to made the assertions substantially as averred; that he said, in substance, the company would not pay the loss, because appellee had designedly burned the property, and, if she wished compensation, she must institute her suit; while but two witnesses (Pratt himself, and Horner, the attorney employed to assist Pratt) deny the making of such statements. The verdict, in so far as it rests upon this conclusion of fact, cannot be disturbed. The stipulation allowing 60 days for payment of the claim is valid, and therefore binding. Unless waived, a suit brought within that time must be abated. But this provision is purely a matter of contract between the parties. It is not even, as in Iowa and Ohio, made a statutory right. Being a matter of contract alone, and for appellant's benefit, undoubtedly appellant could waive it. By an unqualified denial of liability, and refusal to pay the claim, especially when, as in the present case, predicated upon the ground that the assured has, by criminal conduct, forfeited his right thereto, such waiver, in our judgment, takes place. The object of the provision is twofold: First, to enable the company to investigate the causes of loss, and verify the proofs thereof submitted; and, second, to give the company opportunity for making financial arrangements to discharge its obligation. The denial of liability, and absolute refusal, imply satisfaction with the investigations already made, and information already obtained, while, since payment is in no event to be made, preparation therefor becomes a matter of no importance whatever. We shall not prolong this discussion by pointing out objections to the supposed analogy in law and fact between the denial of liability under consideration, and the premature refusal to pay a promissory note, the same not being due. It would be unreasonable, to say the least, for us to hold that, under such circumstances as are here presented, the assured is nevertheless bound by the clause in question, and must wait the expiration of the 60 days before commencing suit. Such is not the law. Insurance Co. v. Maguire, 51 Ill. 342; Cobb v. Insurance Co., 11 Kan. 93. Insurance policies uniformly contain the provision that the assured shall, in accordance with certain prescribed regulations, give notice...