Enos v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 10 February 1894 |
| Citation | 57 N.W. 919,4 S.D. 639 |
| Parties | ENOS et al. v. ST. PAUL FIRE & MARINE INS. CO. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. If an insurance company, with knowledge of facts which render a policy voidable by them, deliberately claim and exercise a right which they can claim and exercise only by virtue of such policy, they thereby waive the right to avoid on account of such facts.
2. Where the policy confers upon the company the right to require the assured to submit to an examination under oath and the company by virtue of such provision requires and makes such examination, they cannot afterwards claim a forfeiture of the rights of the assured under the policy on the ground that, up to the time of such examination, the assured had not given notice of loss or furnished proof of the same.
3. Where the answer of the company alleges that they required and caused such examination to be had, and the evidence shows that at such examination a person appeared, claiming to represent the company, and conducted such examination apparently for them, and afterwards, in reply to a letter from the assured to the company in regard to the written statement taken on such examination, the same person writes an answer, purporting to be that of the company, written on one of the company's letter heads, on which such person is advertised as the "adjuster" of the company, the jury may properly find that such person was the agent of the company.
4. Evidence of such facts is competent and admissible upon the question of agency.
5. Such evidence being before the jury, it is competent to show that such person undertook that the statement so made on such examination should be accepted as proof of loss, not as originally binding on the company, but as the first step towards showing an estoppel against the company, to be complemented by other necessary steps or elements.
6. If the company, on being informed that such person, so assuming to act as agent, had represented and undertaken that such statement should be accepted as proof of loss, and that the assured was relying upon such understanding, did not notify the assured to the contrary, but encouraged the assured to continue in such belief, they were estopped from afterwards refusing to treat such statement as proof of loss.
7. An objection to the sufficiency of proofs of loss on a specific ground is a waiver of all other grounds.
8. Where one ground of defense against the payment of the loss was that the assured had fraudulently set the fire which caused it, and, upon such examination, the assured claimed to have been called from church to his store on the night of and immediately before the fire, and upon entering was seized knocked down, tied, and robbed of a large amount of money which he had on his person, he answered all questions as to the origin and circumstances of the fire, from whom, when and under what circumstances he received said money, but refused to give the name of the party who sent it,--such refusal, considered in connection with other facts fully noticed in the opinion, did not alone justify the company in holding the rights of the assured forfeited for failure to make proper proof of his loss, particularly in view of the action of the jury, which, under the instruction of the court, must have found that the claim of the assured was not fraudulently and materially untrue.
9. A witness, one of the plaintiffs' who stated that he had been half owner of the stock destroyed for more than a year; that he attended the store and did the clerking; that, although he was not very familiar with the values of that kind of property, he knew the cost mark and the selling price; that he generally examined the bills of goods bought and knew what they cost,--is competent to give his opinion as to their value.
10. It is not error to refuse to allow a witness to state how the talk and appearance of the assured upon any occasion affected others than himself, for he could only infer their effect upon others, and to draw inferences is the province of the jury.
11. The silence of a party to an action, against whom damaging facts are called out in evidence, is not equivalent to an admission of their truthfulness, but is the ground of an unfavorable presumption against him.
12. It is not necessarily error to exclude the opinion of a witness that another was feigning, and it is held not to be error under the circumstances of this case.
13. Cross-examination extends by right only to the subjects covered by the direct examination, and where a witness, although a physician, testifies, not as an expert, but only to facts equally obvious to others, it is not error to disallow his cross-examination as an expert.
14. The submission of specific questions to the jury is discretionary with the court, and to refuse is not error.
Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.
Action on a policy of insurance by W. B. Enos and John Baillett against the St. Paul Fire & Marine Insurance Company. There was judgment for plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed.
Kueffner & Fauntleroy and Hosmer H. Keith, for appellant. Palmer & Rogde, for respondents.
This is an action to recover upon a fire insurance policy. The complaint, after stating the usual allegations in such an action, and that the fire which caused the loss occurred on the 4th day of November, 1888, further alleges that at such fire the plaintiff Enos received such injuries as incapacitated him for the space of 60 days thereafter to do or understand simple matters of business, "like giving notice of the loss of his said property to the defendant, or making proof of his loss thereon," but that he gave defendant due notice of such loss, and, on or about January 23, 1889, furnished proofs of the same and of his interest, which proofs were accepted by defendant, who waived all further or other notice or proof. A copy of the policy was attached to the complaint as an exhibit, specific provisions and stipulations in which will be noticed as we progress. The answer alleged, as an affirmative defense, that, subsequent to the making of the contract of insurance, which in terms covered the property of Enos & Baillett as partners, and insured them against loss, said Baillett sold and transferred his interest, if he had any, to said Enos, contrary to the conditions of the contract, and that at the time of the loss Baillett had no interest in the property alleged to have been destroyed. Further, that the said fire was willfully and intentionally set and caused by plaintiff Enos for the purpose of recovering the insurance money. Further, that plaintiffs failed and neglected, without reasonable excuse, to furnish proper or sufficient account or proof of said fire and loss, and that they have never furnished such proofs, or any inventory, as provided in said contract; but that certain pretended proofs and account of the fire subsequently furnished were willfully false, untrue, and fraudulent, the effect of which was, by the terms of the contract or policy, to avoid and make it null. To the answer the plaintiffs replied, but as the answer was neither to a counterclaim nor required by the court it was voluntary and not material. The trial resulted in a verdict and judgment for plaintiffs, and from such judgment, and the order refusing a new trial, defendant has brought this appeal.
Of the 161 assignments of error quite a number are expressly abandoned by appellant, and as many more are passed without argument. Without noticing each individually, we will endeavor to go over the ground covered by those discussed by counsel for appellant. A few questions are raised involving generally the constituent elements of a cause of action like this, such as what a plaintiff is required to prove to show performance on his part or an acceptance by the company of something other, less or different, as performance, and what kind of evidence is competent for either purpose. There are other questions not so general, but peculiar to this case, springing from the admission or rejection of particular items of testimony.
While the making of the contract of insurance as evidenced by the policy is not admitted, but is denied by the answer, no question is made but that it was an existing and binding contract at the time of the loss. The fire occurred November 4, 1888. The policy required that the insured "should forthwith give notice of said loss to the company, and as soon thereafter as possible render a particular account of such loss," etc. Appellant claims that these conditions were not complied with, and that consequently plaintiff's rights under the policy were forfeited. We shall pass for the present at least all the matters and grounds actually or presumably within the knowledge of defendant, on account of which it is claimed the contract of insurance was avoided and became nugatory, up to January 23, 1889. The matters thus passed include the omission of Baillett, as well as of Enos to make proof of loss. We do it upon this ground: The policy provided that, if required by the company, the assured should submit to an examination under oath by any person appointed by the company, presumably, though it is not so expressly stated, as to the circumstances of the fire and other matters affecting the validity of the claim for indemnity. In defendant's answer it is alleged, and the evidence so shows, that on "the 23d day of January, 1889, the said assured, W. B. Enos, in accordance with the terms of said contract of insurance, was duly required by said defendant to submit to an examination under oath, before a person duly appointed by said defendant," etc. Whether what had been done...
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