Continental Ins. Co. of New York v. Wilson

• Decision Date: 10 January 1891
• Citation: 25 P. 629,45 Kan. 250
• Parties: THE CONTINENTAL INSURANCE COMPANY OF NEW YORK v. W. W. WILSON
• Court: Kansas Supreme Court

25 P. 629

45 Kan. 250

THE CONTINENTAL INSURANCE COMPANY OF NEW YORK v. W. W. WILSON

Supreme Court of Kansas

January 10, 1891

Error from Linn District Court.

THE case is stated in the opinion.

Judgment affirmed.

Jas. D Snoddy, for plaintiff in error.

W. R Biddle, for defendant in error; H. T. Smith, of counsel.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

March 8, 1887, the plaintiff in error issued its policy of insurance to the defendant in error, promising therein to indemnify him against loss or damage by cyclone in the sum of $ 1,300, upon his stone dwelling-house and household effects therein. April 21, 1887, the neighborhood of the defendant in error was visited by a heavy wind storm, cyclonic in its character, which struck and severely wrecked his house, and also destroyed some of his household goods therein, resulting in a loss to him, as he alleges, of $ 1,040--$ 1,000 on his dwelling-house and $ 40 on his goods. On the same day he notified the insurance company of his loss by the storm. May 31, 1887, he made and sent to the company proof of his loss. A few days after the storm, Odell and Forward, agents of the company, visited the premises and looked them over. Afterward there was some talk between the defendant in error and the agents of the plaintiff in error about arbitrating the matter, but no arbitration was ever had. January 2, 1888, Wilson began his action in the district court of Linn county. January 12th the insurance company filed its answer challenging the amount of loss sustained by Wilson, and pleading that by the terms of their policy they had a right to arbitrate the difference between the company and Wilson; that the company had demanded arbitration and Wilson had refused to join therein, and claiming that, as Wilson had refused to arbitrate, he could not maintain his action. The company also claimed an offset in the form of a premium note given by Wilson to the company for $ 52, and which, they allege, had never been paid. January 22, 1888, a reply was filed confessing the offset and averring that the plaintiff below was ready and willing to arbitrate, but that the insurance company had refused to submit to arbitration. The case was tried by the court and a jury April 5, 1888. The jury returned a verdict for the plaintiff below, assessing his damages at $ 838.95. A motion for a new trial was overruled, and time given to make a case for this court.

As we view the record, there is but one question for this court to determine. The alleged error in the assessment of the amount of damages hardly rises to the dignity of a question, under the oft-repeated decisions of this court, and the evidence in the case. There is certainly evidence to support the finding of the jury in the sum returned by them. Some of the witnesses fixed the amount of damages suffered by Wilson at much more than the amount returned by the jury. The trial court approved the verdict. The real question is, Was Wilson estopped from maintaining his action by any refusal of his to submit the question of the amount of his loss to arbitration, or by failure to submit to the company proper proof of loss? The policy upon which this action is founded requires that the insured shall give the company notice in writing of his loss, in case loss occurs, within fifteen days, and that he make and transmit to the company his proof of loss within sixty days after it occurs. In this case the defendant gave the agents of the company notice the next day after the storm, and forty days thereafter made and sent the company proof of his loss. There is no complaint of want of notice of the loss within fifteen days, and actual notice was given the next day after the storm.

Plaintiff in error does complain of the sufficiency of the proof of loss. As the proof of loss was made and sent to the company May 31, 1887, twenty days before the expiration of the period of time fixed in the policy during which it must be made, and the company held it without making any objection thereto until the 29th of July, 1887, and until long after the time as fixed in the policy for making the proof of loss had expired, it is estopped from making any complaint now. (98 Pa. 627; 67 Ga. 14; 67 id. 661; 132 Mass. 489; 54 Cal. 442; 28 Wis. 472; 31 id. 160; 52 Me. 492; 60 Ill. 465; 43 Barb. 351; 16 Wend. 85; 11 Mo. 278; 91 U.S. 238.) The arbitration clause of the policy reads as follows:

"Differences of opinion arising between the parties hereto as to the amount of loss or damage may be settled by arbitration; each party to select one arbitrator, and in case of disagreement they to select a third, and their award in writing, under oath, shall be binding as to the amount of loss, the cost of said...