Dodder v. Pacific Mutual Life Insurance Company

• Decision Date: 28 February 1920
• Docket Number: 20627
• Citation: 176 N.W. 730,104 Neb. 74
• Parties: DELLA M. DODDER, APPELLANT, v. PACIFIC MUTUAL LIFE INSURANCE COMPANY, APPELLEE
• Court: Nebraska Supreme Court

176 N.W. 730

104 Neb. 74

DELLA M. DODDER, APPELLANT, v. PACIFIC MUTUAL LIFE INSURANCE COMPANY, APPELLEE

NO. 20627

Supreme Court of Nebraska

February 28, 1920

REHEARING DENIED.

ALDRICH J. LETTON and DAY, JJ., not sitting.

OPINION

ALDRICH J.

The brief filed for rehearing shows one or two misstatements inadvertently made in the opinion, ante, p. 74 which require attention.

We erred in our statement that by stipulation it had been agreed that the decision in the AEtna case should be decisive in this case.

We also erred in our statement that the witnesses in the two cases were the same. This would be serious error if in considering the instant case we had failed to give due and proper consideration to the testimony of witnesses who swore in this case and did not testify in the AEtna case. In view of the fact, however, that in the consideration of both cases we did give consideration to the evidence of all the witnesses, we do not consider the mistake a serious one. The evidence bearing upon the profits in business in the year 1916 was considered by all the judges. The same is true of the evidence of the hackman, who swore that on the morning of January 4, 1917, he took the Moran woman from the Union Depot in Omaha, at 8:30 a. m., to Twenty-fourth and Vinton streets. The evidence going to the merits of the controversy that we considered final and conclusive was substantially the same in both cases, and we were of the opinion that the evidence shows that the death was suicidal.

It is also insisted that we erred in stating that the issues were the same in the two cases. They are substantially the same. It is true that the plaintiff argues at some length in the instant case that the defendant waived its defense that it was not liable upon the policy because defendant asked for proofs of death and proofs were furnished. The evidence, however, shows clearly that nothing in the nature of a waiver arose. In the request for proofs of loss, plaintiff was notified by an attached reservation that the company did not waive any of its defenses, and the trial court was right in striking out the evidence upon that question. We hold the rule to be that, when a contract of insurance is treated by the company as valid and in full force during all the time of the negotiations, then its defense may be considered as waived; but when it denies liability, then there is no waiver.

It is also evident that from the beginning the insurance company in this case did not intend to recognize liability. The plaintiff very early in the proceedings knew this. It waived no defense it might have, and the parties understood each other perfectly.

It is said: "Where, by the policy or otherwise, the insured is informed, at the time the demand is made, that a full compliance with the policy will be required, and that the demand shall not be considered as a waiver of any forfeiture, no waiver will arise, though the insured complies with the request." 4 Cooley, Briefs on the Law of Insurance, p. 3520. We hold it to be the law that, where under the circumstances a reasonable person may believe that no formal or preliminary requirement of proof of loss will be required, then, if he waives cost and trouble in making proofs, it may be inferred that there is a waiver. But it is also true that a waiver of past failure, when evidenced by supplying blanks to the insured, will not be construed as waiver of future reasonable delay in furnishing the proofs. This substantially is the doctrine laid down in 1 C. J. 480, sec. 202. We hold it to state the law governing the question of waiver presented in the instant case.

It is evident that defendant company knew the facts surrounding this case, and it is also evident that it did not intend to recognize liability. Then, if it happens that the company fully intends to deny liability, it fully shows that proofs of loss are of no benefit to any one. Hence the general doctrine that, if an insurance company knows all about the facts and feels that there is no liability on its part, there would be no reason to insist that the insured go to the trouble and expense of making proof of loss, when it already knew of the loss and what was claimed to be the cause of it. The company never intended to waive, and as a matter of fact it should in no way be construed that they waived, any defense. We hold that the assured under such circumstances should not be allowed to take advantage of the company, any more than the company should be allowed to take advantage of the assured.

In all of the preliminary arrangements between plaintiff and defendant, defendant always expressly reserved its right to whatever defense it might have. The defendant early took the position that whatever course plaintiff took she assumed the entire responsibility, and the defendant never assumed any liability on its policy...