First Nat. Bank of Devil's Lake v. Am. Cent. Ins. Co. of St. Louis

• Decision Date: 16 October 1894
• Parties: FIRST NAT. BANK OF DEVIL'S LAKE v. AMERICAN CENT. INS. CO. OF ST. LOUIS.
• Court: Minnesota Supreme Court

58 Minn. 492

60 N.W. 345

FIRST NAT. BANK OF DEVIL'S LAKE

v.AMERICAN CENT. INS. CO. OF ST. LOUIS.

Supreme Court of Minnesota.

Oct. 16, 1894.

(Syllabus by the Court.)

In an action brought against an insurance company on a policy of insurance to recover a loss:

1. Held, that it appears by the answer that proof of loss was served on the insurer, and, if such proof was defective, that the defect was waived by its retaining such proof.

2. Where the policy provided that it should be void if the insured procured other insurance on the property, but it was orally agreed between the insurer and the insured that permission should be given the insured to procure $11,0O0 other concurrent insurance, and that this permission should be inserted in the policy, but by clerical mistake permission was so inserted for only $3,000 other insurance, and there was on the property, at the time this policy was delivered, $11,000 other insurance, which the agent of the insurer then knew, held (following Brandup v. Insurance Co., 7 N. W. 735, 27 Minn. 393), by delivering the policy, knowing the existence of such other insurance, the insurer waived this condition.

3. The policy contained a printed condition avoiding it if the subject of the insurance is personal property, and be or become incumbered with a chattel mortgage. Held, the subsequent written portion of the policy, insuring the property of the insured, “its own, or held by it in trust or on commission, or sold but not delivered,” did not annul or supersede the condition against such chattel mortgage incumbrance, and the placing of such an incumbrance on the property after the making of the policy, and before the loss, avoided the policy.

Appeal from district court, Ramsey county; J. J. Egan, Judge.

Action by the First National Bank of Devil's Lake against the American Central Insurance Company of St. Louis. Judgment for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

Kueffner, Fauntleroy & Searles and Samuel E. Hall, for appellant.

Bunn & Hadley, for respondent.

CANTY, J.

The defendant issued a policy of fire insurance to the Devil's Lake Mill Company, insuring the property hereinafter mentioned against fire. During the life of the policy the property insured was burned. The sum due under the policy was assigned to plaintiff, who brings this suit to recover for the loss. On a trial before the court without a jury, judgment was ordered for plaintiff, and, from an order denying a new trial, defendant appeals.

1. It is claimed by appellant that it was not proved on the trial that any proof of loss was ever served on it as required by the policy. The complaint alleges that such proof of loss was served. The answer denies this by a general denial, but alleges that on the same day “a sworn statement in regard to said fire, and the property covered thereby, and the incumbrances thereon,” was made, and sent to it by mail by the mill company, which it alleges was fraudulent. While the answer does not state that this sworn statement contained all the data required to be given in the proof of loss, it at least admits that sufficient was stated to make a defective proof of loss, and the defendant, by retaining it, has waived the right to avoid the policy for want of a sufficient proof of loss.

2. The policy...