Cedar Rapids Ins. Co. v. Julia C. Shimp.

• Decision Date: 30 November 1884
• Citation: 16 Bradw. 248,16 Ill.App. 248
• Parties: CEDAR RAPIDS INSURANCE CO.v.JULIA C. SHIMP.
• Court: United States Appellate Court of Illinois

16 Ill.App. 248

16 Bradw. 248

CEDAR RAPIDS INSURANCE CO.

v.JULIA C. SHIMP.

Appellate Court of Illinois, Third District.

November Term, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed January 23, 1885.

Mr. WM. A. DAY and Mr. C. J. DEACON, for appellant; that the increase in the risk need not be proved where the parties agree in advance that a change without the consent of the company shall “render the policy void,” cited Wood on Fire Insurance, § 119; Worcester v. Ins. Co., 9 Gray, 27; Kelley v. Ins. Co., 97 Mass. 284; Howell v. Equitable Society, 16 Maryland, 377; McGowan v. Ins. Co. (Vt. Case, 1881), Ins. L. J. Vol. 11, p. 209; Indiana Ins. Co. v. Brehm, (Ind. Case, 1883), Ins. L. J. Vol. 12, p. 607; Fire Association of Phila. v. Williamson, 26 Pa. St. 176; David v. Ins. Co., 13 Ia. 74; Hygum v. Ins. Co., 11 Ia. 21.

As to warranty: Franklin Ins. Co. v. Martin, 8 Ins. L. J. 134.

Where the agent's authority is limited to taking the application and forwarding it to the company for acceptance or rejection, notice to the agent will not bind the company; the application must govern: Ayer v. Ins. Co., 17 Ia. 176; Anson v. Ins. Co., 28 Ia. 84; Dickinson v. Ins. Co., 41 Ia. 286; Reynolds v. Ins. Co., 36 Mich. 131; Morse v. Ins. Co., 5 Ins. L. J. 409.

As to waiver of proof of loss: Wood on Ins. 411; Inman v. Ins. Co., 20 Wis. 217; Blossom v. Ins. Co., 64 N. Y. 162; Scammon v. Germania Ins. Co., 101 Ill. 624; Edgerly v. Ins. Co., 43 Ia. 590; Underwood v. Ins. Co., 57 N. Y. 500; Ripley v. Ins. Co., 30 N. Y. 138; Bruck v. Ins. Co., 78 N. Y. 593; Jewett v. Ins. Co., 29 Ia. 565.

Notice of loss is not a compliance with the other condition requiring sworn proofs: Scammon v. Germania Ins. Co., 101 Ill. 624; Edgerby v. Ins. Co., 48 Iowa, 646; Edwards v. Ins. Co., 75 Penn. 378; Beatty v. Ins. Co., 66 Penn. 9; Blossom v. Ins. Co., 64 N. Y. 162.

Mr. E. L. SWEET and Mr. J. S. WOLFE, for appellee; as to what constitutes a waiver of proof of loss, cited Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453; Lycoming Fire Ins. Co. v. Dunmore, 75 Ill. 14; Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill. 466; Wait's Actions and Defenses, 80; West Rockingham Ins. Co. v. Sheets, 26 Grattan (Va.), 854; Owen v. Farmers Ins. Co., 57 Barb. 518; 1 Greene, S. C. Reports (N. J.), 110.

WELCH, J.

This was a suit in assumpsit brought by appellee against the appellant to recover for a loss under a policy against fire. By said policy appellant insured the appellee for the term of three years from June 14, 1882, against loss by fire, to the amount of $1,500, distributed, on dwelling, $900; on furniture, $200; on clothing, $250; on piano, $150. In February, 1883, the property insured was totally destroyed by fire. The trial in the court below resulted in a verdict in favor of appellee for the sum of $1,275, for which sum and costs judgment was rendered against appellant, from which judgment this appeal is taken. Various errors are assigned. The principal errors assigned are as to the giving and refusing to give certain instructions. The question as to the instructions given and those refused, as to which of them announced the correct law in this case, are to be determined by the contract of insurance sued on, and the effect to be given to certain letters of the agent of appellant, and his acts in regard to the loss, together with the receipt by appellant of a portion of the premium on said policy after the loss. By said policy, the appellee was required forthwith to give notice of loss, and within thirty days deliver to appellant, at Rockford, Ill., “a sworn statement containing a full and particular account of such loss or damage, stating the cause of the same, the cash value of the property destroyed or damaged, and the interest of the assured therein. It is conceded that the giving of the notice and the making of the sworn statement as required by the policy, is a condition precedent to a right of recovery. The declaration in this case concedes that no proof of loss was made as required by the policy, but avers that the appellant waived and dispensed with the giving of said full and particular account of said loss. The learned counsel for appellee in their brief say “that the waiver may be shown expressly or by evidence of intent not to pay in any event, or by defenses inconsistent with an in tention to pay if proofs had been furnished.” And it is claimed that a waiver has been established in this case by the last two named. When and at what time must this intent not to pay in any event be made known to the insured? It is conceded that if the insurer, on the reception of the notice of loss, denies all liability and gives the insured notice thereof, or if, after proof of loss, payment is refused on the ground that it is not liable, this would in law be a waiver. In the first case suggested, after notice of loss and denial of all liability by the insurer and notice thereof to the insured, the law would not require of the insurer the performance of the useless duty of making out the proofs, and in the second case suggested, the refusal to pay, based on the ground of want of liability and not upon the ground of defective proofs, and notice thereof to the insured, the insurer would be estopped from insisting on proof of loss being defective. It would seem clear that this intent not to pay, or denial of all liability, must be given to the insured within the time in which she was required to furnish the proof. There were certain letters of the agent of appellant to appellee in evidence, one of date Feb'y 27, 1883, in which is acknowledged notice of loss: “In answer will say, I will be able to reach your place in a few days to look the matter up. Trusting this will be satisfactory;” and on March 12, 1883: “I have been unavoidably delayed but will reach your place the latter part of this week.” On the 15th of March, 1883, the agent visited Champaigu in relation to the loss of appellee “made an investigation of the circumstances of the fire, inquired of the neighbors of the character of the persons occupying the house--put in one day at it. I made no adjustment, it didn't look to me like an honest loss, and went home waiting proofs which would develop the origin of fire and the character of house. I left Champaign next morning, made inquiry for Mrs. Shimp and was informed she was out of town; was not at Champaign until the 24th or 25th of May, after suit brought.”

The learned judge who tried this case gave to the jury for appellee instructions 3 and 7.

3. “The court instructs the jury that if they believe from the evidence that the adjuster of said company on being informed of the loss of said property, wrote to the plaintiff that he would come to adjust such loss, this would be a waiver of further notice of loss unless it was insisted on.” We are unable to account for the giving of this instruction except that in the hurry of the trial the judge did not have time to examine it critically. It is not further notice of loss that is insisted on. Notice of the loss was acknowledged. It is the proof of loss required by the policy prior to the right of recovery. The instruction is also objectionable in this, that there is no evidence on which to base that portion of the instruction that the adjuster of the company “wrote to the plaintiff that he would come to adjust such loss.”

7. “If the evidence proves that the defendant, by its adjusting agent, Williams, made a general investigation of the loss in question for itself, and does not show that it made any inquiry for proofs of loss named in the policy, then, and in that case, the defendant must be held to have waived such proof of loss, and on that point the jury will find for the plaintiff in that event of proof.”

This instruction announces the proposition that if the adjuster of appellant came and made an investigation of the loss for itself and did not ask for further proofs, that that was a waiver. The contract of insurance required appellee to make the sworn statement required by the policy, and how the fact that the adjuster of appellant made an examination for it can discharge or relieve appellee from making the statement required to be made by her, we are unable to perceive. Nothing was said by the agent to her. She knew of his being there and going away. She knew she had made no proof of loss, and the greatest influence which his conduct could have probably had was to delay her in making proof until he came, which was correctly stated in the refused instructions of appellant, numbered 4 and 12, which should have been given, and appellee's instructions 3 and 7, which were given, should have been refused. We refer to the following authorities as sustaining our views: Blossom v. Ins. Co., 64 N. Y. 162; Bunts v. Ins. Co., 73 N. Y. 593.

The cases referred to by appellee's counsel in their brief, 75 Ill. page 14. Upon an examination of that case we find that formal proofs were made of the loss and presented to the company's agent, who declined to receive them, not because they were defective or informal, but because the company was not liable for the loss. That was held to estop the company from making any formal objections to the proof, when sued on the policy for the loss. Also the case in 83 Ill. page 453. Timely notice was given in that case and proof of loss made; when the proofs were furnished, the company made no objections. That is not this case; here no proof of loss was made.

A note was given by appellee to appellant, dated June 14, 1882,...