Ennis v. Retail Merchants' Ass'n Mut. Fire Ins. Co.
| Citation | 156 N.W. 234,33 N.D. 20 |
| Decision Date | 04 January 1916 |
| Docket Number | 1915 |
| Court | United States State Supreme Court of North Dakota |
On petition for rehearing February 9, 1916.
Appeal fro the District Court of Cass County, Pollock, J.
Action to recover on a fire insurance policy. Verdict and judgment for the plaintiff, which is set aside and a judgment notwithstanding the verdict entered for the defendant. Plaintiff appeals.
Reversed and the former verdict and judgment ordered reinstated.
Judgment reversed and case remanded with directions and judgment entered for the plaintiff.
Knauf & Knauf, for appellant.
It was error for the court to allow amended answer setting up an entirely new defense, after the trial had been closed and the case ended, because it came too late; because of the new defense and because at all times but the one defense of nonpayment of the premium had been pleaded and relied upon during the entire case. Maclaren v. Kramer, 26 N.D 244, 144 N.W. 85.
Especially is this true where it is sought by defendant to introduce upon the trial evidence of some new defense--a defense outside the issues--and objection is promptly made. In such case there is no abuse of discretion in denying leave to amend. Mendenhall v. Harrisburg Water Power Co. 27 Ore. 38, 39 P. 399; Walker v. O'Connell, 59 Kan 306, 52 P. 894; Mares v. Wormington, 8 N.D. 329, 79 N.W. 441; Heegaard v. Dakota Loan & T. Co. 3 S.D. 469, 54 N.W. 656; Leggat v. Palmer, 39 Mont. 302, 102 P. 327; 1 Enc. Pl. & Pr. note 5, p. 585, and cases cited; Wood v. Pehrsson, 21 N.D. 357, 130 N.W. 1010; 31 Cyc. 452 (iv) and additional citations under note 85.
If allowable at all, the amendment should have been made before the evidence was admitted. Beard v. Tilgham, 20 N.Y.S. 736, 31 Cyc. P 4, p. 452; Avegno v. Fosdick, 28 La.Ann. 109; Scott v. Smith, 2 Kan. 438; Texier v. Gouin, 5 Duer, 389.
The defendant waived the alleged new defenses even though they were unknown. It could have discovered them before answering in the first instance had it duly prepared. Amendments are not allowed to give one party purely technical advantage over the other. Skinner v. Norman, 165 N.Y. 565, 80 Am. St. Rep. 776, 59 N.E. 309; Rev. Codes 1905, § 6883, Comp. Laws 1913, § 7482; Hexter v. Schneider, 14 Ore. 184, 12 P. 668; O'Toole v. Garvin, 1 Hun, 313; Chlein v. Kabat, 72 Iowa 291, 33 N.W. 771; Seegers v. McCreery, 41 S.C. 548, 19 S.E. 696; Hiatt v. Auld, 11 Kan. 176; Riggs v. Chapin, 27 N.Y. S. R. 268, 7 N.Y.S. 765.
After plaintiff has rested, it is error to permit amendments showing new defenses, which plaintiff is not prepared to meet. Skagit R. & Lumber Co. v. Cole, 2 Wash. 57, 25 P. 1077; Ferguson v. Hannibal & St. J. R. Co. 35 Mo. 452; Spyker v. Hart, 22 La.Ann. 534; Iltis v. Chicago, M. & St. P. R. Co. 40 Minn. 273, 41 N.W. 1040; Garrison v. Goodale, 23 Ore. 307, 31 P. 709; Athens Mut. Ins. Co. v. Ledford, 134 Ga. 500, 68 S.E. 91; Glazer v. Lowrie, 8 Serg. & R. 498.
Plaintiff having demanded from the insurance company, soon after the fire, a set of proof of loss blanks, and the company falling to send same, plaintiff thereafter sent in proof of loss, which was retained by the company without objection; it waived all insufficiency or irregularity. Rev. Codes 1905, §§ 5977, 5978, Comp. Laws 1913, §§ 6544, 6545; Angier v. Western Assur. Co. 10 S.D. 82, 66 Am. St. Rep. 685, 71 N.W. 761; 2 Bacon Ben. Soc. § 409, p. 1033; Hart v. Fraternal Alliance, 108 Wis. 490, 84 N.W. 851; Hutchinson v. Supreme Tent, K. M. 68 Hun, 355, 22 N.Y.S. 801; Stepp v. National Life & Maturity Asso. 37 S.C. 417, 16 S.E. 134.
Notice from the secretary is notice from the company. The company is bound by the acts of its secretary. Olmstead v. Farmers' Mut. F. Ins. Co. 50 Mich. 201, 15 N.W. 82.
Any affirmative defense must be specially pleaded. All defenses not set up in the answer are waived. Goodwin v. Massachusetts Mut. L. Ins. Co. 73 N.Y. 496; Brink v. Hanover F. Ins. Co. 80 N.Y. 113; Smith v. German Ins. Co. 107 Mich. 270, 30 L.R.A. 368, 65 N.W. 236.
Where defendant has particularly called attention of insured to its reason for refusal to pay for the loss, because of claimed failure to pay the premium, and, when sued, comes in and by its answer sets up this sole and only defense, it waives all other defenses. Continental Ins. Co. v. Waugh, 60 Neb. 348, 83 N.W. 81; Franklin F. Ins. Co. v. Chicago Ice Co. 36 Md. 102, 11 Am. Rep. 469; Home Ins. Co. v. Baltimore Warehouse Co. 93 U.S. 527, 547, 23 L.Ed. 868, 870; Ohio & M. R. Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693.
A distinct denial of liability and refusal to pay a loss, on the ground that there is no contract, is a waiver of proofs of loss. Tayloe v. Merchants' F. Ins. Co. 9 How. 390, 403, 19 L.Ed. 187, 192; Allegre v. Maryland Ins. Co. 6 Harr. & J. 408, 14 Am. Dec. 289; Norwich & N.Y. Transp. Co. v. Western Massachusetts Ins. Co. 34 Conn. 561; Thwing v. Great Western Ins. Co. 111 Mass. 93; Brink v. Hanover F. Ins. Co. 80 N.Y. 108; May, Ins. §§ 468, 469; Knickerbocker L. Ins. Co. v. Pendleton, 112 U.S. 696, 710, 28 L.Ed. 866, 870, 5 S.Ct. 314; Covenant Mut. Ben. Asso. v. Spies, 114 Ill. 463, 2 N.E. 482; Grattan v. Metropolitan L. Ins. Co. 80 N.Y. 281, 36 Am. Rep. 617; AEtna Ins. Co. v. Shryer, 85 Ind. 362; Carson v. German Ins. Co. 62 Iowa 433, 17 N.W. 650; Phoenix Ins. Co. v. Adams, 8 Ky. L. Rep. 532; Daul v. Firemen's Ins. Co. 35 La.Ann. 98; Home Ins. Co. v. Gaddis, 3 Ky. L. Rep. 159; Aurora F. & M. Ins. Co. v. Kranich, 36 Mich. 289; Rokes v. Amazon Ins. Co. 51 Md. 512, 34 Am. Rep. 323; Planters' Ins. Co. v. Comfort, 50 Miss. 662; German-American Ins. Co. v. Davidson, 67 Ga. 11; Merchants' & M. Ins. Co. v. Vining, 68 Ga. 197; Goodwin v. Massachusetts Mut. L. Ins. Co. 73 N.Y. 480; Kantrener v. Penn Mut. L. Ins. Co. 5 Mo.App. 581; Marston v. Massachusetts L. Ins. Co. 59 N.H. 92; King v. Hekla F. Ins. Co. 58 Wis. 508, 17 N.W. 297; Zielke v. London Assur. Corp. 64 Wis. 442, 25 N.W. 436; Home Ins. Co. v. Baltimore Warehouse Co. 93 U.S. 546, 23 L.Ed. 870; Payn v. Mutual Relief Soc. 6 N.Y. S. R. 365, 17 Abb. N. C. 53; Pennsylvania F. Ins. Co. v. Dougherty, 102 Pa. 568; Girard L. Ins. Annuity & T. Co. v. Mutual L. Ins. Co. 97 Pa. 15; Kansas Protective Union v. Whitt, 36 Kan. 760, 59 Am. Rep. 607, 14 P. 275; Lazensky v. Supreme Lodge, K. H. 31 F. 592; Norwich & N.Y. Transp. Co. v. Western Massachusetts Ins. Co. 34 Conn. 561; Kansas Protective Union v. Whitt, 36 Kan. 760, 59 Am. Rep. 607, 14 P. 275.
Plaintiff never consented to litigate issues other than those set out in the pleadings; therefore a request for a charge on another issue is properly refused. Ganser v. Fireman's Fund Ins. Co. 38 Minn. 74, 35 N.W. 584.
The clauses in an insurance policy covering the keeping of an "iron safe," "books of account," and "inventory," if relied to defeat the loss under the policy, must be specially pleaded in the answer, and then proved as facts, else they are waived. Coburn v. Traveler's Ins. Co. 145 Mass. 226, 13 N.E. 604; Elliott v. Home Mut. Hail Asso. 160 Iowa 105, 140 N.W. 431; Bohles v. Prudential Ins. Co. 84 N.J.L. 315, 86 A. 438; Queen of Arkansas Ins. Co. v. Forlines, 94 Ark. 227, 126 S.W. 719.
Where the actions of an insurance company indicate one, certain, sole and only defense, other defenses are waived. Walrod v. Des Moines F. Ins. Co. 159 Iowa 121, 140 N.W. 218; Queen of Arkansas Ins. Co. v. Forlines, 94 Ark. 227, 126 S.W. 719; Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 So. 46; Liverpool & L. & G. Ins. Co. v. Tillis, 110 Ala. 201, 17 So. 672; Georgia Home Ins. Co. v. Allen, 119 Ala. 436, 24 So. 399; Montgomery v. Montgomery Waterworks Co. 77 Ala. 256; Fire Ins. Cos. v. Felrath, 77 Ala. 194, 54 Am. Rep. 58; Central City Ins. Co. v. Oates, 86 Ala. 558, 11 Am. St. Rep. 67, 6 So. 83; 1 Joyce, Ins. PP 425, 440, 591; Brink v. Hanover F. Ins. Co. 80 N.Y. 113.
Peirce, Tenneson & Cupler, attorneys for respondent.
Defendant assumed throughout the case, and until the testimony of the plaintiff himself, that plaintiff had complied with all the provisions of the policy, and that if the jury should find that he had paid the premium to the agent, there was no other defense. The company had no previous knowledge of any other breach of the policy. The fact that no inventory had been taken; that same and books of account had not been kept in an iron safe, as the policy provides, was unknown to the company, until disclosed by plaintiff on the witness stand. The amendment was therefore properly allowed. North British & Mercantile Ins. Co. v. Rudy, 26 Ind.App. 472, 60 N.E. 9; Brock v. Des Moines Ins. Co. 96 Iowa 39, 64 N.W. 685; Sweeney v. Johnson, 23 Idaho 530, 130 P. 997; Emmons v. Home Ins. Co. 1 Penn. (Del.) 83, 39 A. 775; Southern Ins. Co. v. Hastings, 64 Ark. 253, 41 S.W. 1093; Burke v. Snell, 42 Ark. 57; 2 Elliott, Ev. 920.
By plaintiff's own evidence he had shown that he was not entitled to a verdict, a prima facie case had not been made out, and there was no call for evidence from defendant. Cooke v. Northern P. R. Co. 22 N.D. 266, 133 N.W. 303.
Plaintiff alleged in his complaint that he had performed all the conditions of the policy. A general denial puts in issue this question of performance, without the necessity of alleging such conditions and their breach. Sifton v. Sifton, 5 N.D. 187, 65 N.W. 670; 9 Cyc. 600, 732.
Failure to move for or to accept a continuance is a waiver of an objection to the allowance of an amendment on the ground of surprise. 31 Cyc. 751, note 45; Helbig v. Grays Harbor Electric Co. 37 Wash. 130, 79 P. 612; Straus v. Buchman, 96 A.D. 270, 89 N.Y.S. 226, affirmed in 184 N.Y. 545, 76 N.E. 1109.
The mere fact that the amendment constitutes a departure in pleading, or adds or...
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