German Ins. Co. of Freeport v. Davis

• Decision Date: 05 June 1894
• Parties: GERMAN INS. CO. OF FREEPORT v. DAVIS.
• Court: Nebraska Supreme Court

40 Neb. 700

59 N.W. 698

GERMAN INS. CO. OF FREEPORT

v.DAVIS.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

1. Under a policy of insurance providing that no action thereon can be maintained unless commenced within 6 months after the fire, and that the damages should be payable 60 days after satisfactory proofs of loss shall have been received by the company, an action upon the policy is not barred if commenced within 6 months from the expiration of the 60 days. Insurance Co. v. Fairbanks, 49 N. W. 711, 32 Neb. 750;Insurance Co. v. Buckstaff, 56 N. W. 697, 38 Neb. 150.

2. Where the premises were occupied by tenants of insured at the time the risk was written, and the policy so specified, a stipulation in the policy making it void in case the premises became vacant and unoccupied without the consent of the company is not violated, so as to defeat the recovery for the loss, by the fact that, the evening before the fire, without the knowledge or consent of the insured, such tenants moved out of the building. Insurance Co. v. Buckstaff, 56 N. W. 695, 38 Neb. 146.

3. A provision in a policy of insurance that the insured, in a case of loss, should forthwith give notice thereof in writing to the company, and, within 60 days from date of the fire, furnish preliminary proofs of his loss, is valid and binding upon the insured; and, in an action upon the policy, it is necessary for the plaintiff to prove that such notice and proofs of loss were furnished, or that the company waived the same.

4. A letter by the secretary of a fire insurance company, written after the proofs of loss were due under the policy, acknowledging the receipt of a letter written by the policy holder regarding his claim for loss, and also stating that the matter therein referred to was in the hands of the company's state agent, who would give it his attention as early as possible, and admonishing the insured to be patient, does not waive the conditions requiring the insured to furnish proofs of loss within a specified time.

5. Where the acts of an adjuster are relied upon to establish a waiver of proofs of loss or of deficiencies therein, it must be shown that such person was clothed with power to represent the company in adjusting the loss.

6. Instructions should be based upon the evidence in the case.

Error to district court, Colfax county; William Marshall, Judge.

Action by Caleb Davis against the German Insurance Company of Freeport. Judgment for plaintiff, and defendant brings error. Reversed.C. J. Garlow and Higgins & Garlow, for plaintiff in error.

Grimison & Thomas, for defendant in error.

NORVAL, C. J.

This action was brought by Caleb Davis against the German Insurance Company of Freeport, Ill., upon a fire insurance policy of $725, covering plaintiff's one-story, frame, shingle-roof building, and three billiard tables therein, said building being situate in the village of Avoca, Cass county, and occupied by tenants as a saloon and billiard hall. The policy was issued January 23, 1889, for the period of one year. The insured property was totally destroyed by fire April 26, 1889. The amended petition contains the usual allegations in such an action. The answer, after admitting certain averments of the petition, and denying others, alleges four substantive defenses, namely: (1) The plaintiff willfully, unlawfully, and fraudulently caused to be set the fire which destroyed the building and contents, for the purpose of obtaining from the defendant the insurance money; (2) that the action is barred by the limitation clause in the policy; (3) that the policy was not in force at the time of the fire, by reason of the building being vacant and unoccupied; (4) that the plaintiff failed and neglected to furnish notice and proofs of said fire and loss within the time required by the contract. To the answer, the plaintiff replied by a general denial, also setting up that the defendant had waived the stipulation in the policy as to the notice and proofs of loss. The trial resulted in a verdict and judgment for the plaintiff in the sum of $808.80, and from an order denying a new trial defendant prosecutes error.

It is quite probable that the building was set on fire by an incendiary, but there is absolutely no proof in the record which in the least degree tends to connect the plaintiff therewith, while the uncontradicted evidence shows that neither the plaintiff nor his son had anything to do with the burning of the building. It is not insisted in the brief of the company that they had. The first defense need not therefore be considered further.

By the policy, it is provided that the damages are “to be paid in sixty days after the loss shall have been ascertained, in accordance with the conditions of the policy, and satisfactory proof of the same shall have been made by the insured, and received at the principal office of the company in Freeport, Illinois, unless the property be replaced or this company shall have given notice of its intention to rebuild or repair the damaged premises.” The policy also contains this clause: “(25) No suit or action of any kind against this company for recovery of any claim upon, under, or by virtue of this policy shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within the term of six months next after the fire; and, in case any suit or action be commenced against this company after the term of six months next after the fire, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, thereby so attempted to be enforced, any statute of limitation to the contrary notwithstanding; also, that this policy is made and accepted upon the above-expressed terms and conditions.” On the night of the 26th of April, 1889, the fire occurred. The record is absolutely silent as to the time the suit was commenced. The transcript shows that an amended petition was filed in the court below on the 17th day of April, 1890. The original petition is not in the record before us, nor is there anything to indicate the date of the filing thereof, or when the summons was issued. The answer avers that the suit was not brought until the 16th day of December, 1889, but this averment was denied by the reply. In view of this condition of the record, we might presume that the action was instituted within six months from the occurrence of the fire; but since the plaintiff in error, in its statement of the case in the brief, says that the petition was filed December 16, 1889, and service soon thereafter was made on the company, and as the defendant in error, in his brief, does not deny the correctness thereof, we will accept as a fact that the action was commenced on said date, or more than seven months subsequent to the fire. Counsel for the insurance company insist, and they have cited many authorities from other states to sustain their position, that, under the provision of the policy, the action was barred in six months after the fire; while counsel for the insured contends that the six-months limitation period did not commence to run until the right of action fully accrued. Special limitations in contracts similar to the provisions in this policy are now generally sustained by the courts, although it must be conceded that the decisions are not in harmony as to the time the period of limitation begins to run. Some hold that it dates from the fire or loss, and others from the time the insured had the right to bring suit upon the policy. This court, by its former decisions, is committed to the doctrine last stated. In Insurance Co. v. Fairbank, 32 Neb. 750, 49 N. W. 711, by the terms of the policy, it was stipulated that the damages should be paid in 90 days after notice and proofs of loss are received by the company. The policy contained the following clause: “It is mutually agreed that no suit or action against this company upon this policy shall be sustained in any court of law or equity unless commenced within six months after the loss or damage shall occur; and, if any suit or action shall be commenced after the expiration of six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitations to the contrary notwithstanding.” The suit was not brought upon the policy until 8 1/2 months after the loss; and it was held that the cause of action did not accrue before the expiration of 90 days after proofs of loss were received, and that the action was not barred until the expiration of 6 months from that time. The opinion cites the following authorities, which sustain the construction there given: Ellis v. Insurance Co., 64 Iowa, 507, 20 N. W. 782;Miller v. Insurance Co., 70 Iowa, 704, 29 N. W. 411;McConnell v. Association, 79 Iowa, 757, 43 N. W. 188;Matt v. Association (Iowa) 46 N. W. 857;Hay v. Insurance Co., 77 N. Y. 241;Killips v. Insurance Co., 28 Wis. 472. The conditions in the policy in the case of Insurance Co. v. Fairbank, supra, are almost identical with those contained in the policy before us; the only difference being that in the precedent cited the language used in the limitation clause is “unless commenced within six months after the loss or damage shall occur,” while by this policy the action must be brought “within the term of six months next after the fire.” There is no substantial difference between the two provisions. The date of the “fire” and the date of the “loss” are the same. In Insurance Co. v. Buckstaff, 38 Neb. 150, 56 N. W. 697, this court had under consideration a policy which, in addition to the usual provision that loss should not become payable until 60 days after the proofs of loss are received by the company, contained a condition that “no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustained in any court of law or chancery * * * unless such suit or action shall...