German Ins. Co. v. Gibson

• Decision Date: 01 November 1890
• Citation: 14 S.W. 672,53 Ark. 494
• Parties: GERMAN INSURANCE CO. v. GIBSON
• Court: Arkansas Supreme Court

14 S.W. 672

53 Ark. 494

GERMAN INSURANCE CO. v. GIBSON

Supreme Court of Arkansas

November 1, 1890

APPEAL from Nevada Circuit Court, C. E. MITCHEL, Judge.

Affirmed.

Sanders & Watkins for appellant.

1. When a policy provides that the loss shall be payable ninety days after proof of loss, an action brought within that period is premature. 2 Wood on Insurance, sec. 462. The burden is on plaintiff to show a waiver, and this the evidence fails to show.

2. The court instructed the jury that a denial of plaintiff's right to recover by reason of alleged breaches of warranty was a waiver of proofs of loss, and that the fact that defendant received proofs of loss and made objections to their form, etc., constitute a waiver of the breach of warranty. These conclusions are inconsistent with each other. One or the other of these instruction was abstract, for they both could not be supported by the evidence.

3. The third instruction assumes, as a matter of law, that the adjuster, by failing to claim a forfeiture for breach of warranty at the time he made the examination, etc., waived the breach. It assumes that he was authorized to waive forfeitures, and is not qualified by stating that a waiver must be made by one having authority. 65 Iowa 454. Waiver is a question of intent, and must be made with actual knowledge of the facts and circumstances. This knowledge must be brought home to the principal. It must be shown that the company had actual knowledge, or the waiver will not be presumed. 5 Mo. App., 73; 20 Mo. App., 246; 46 Wis. 671; 105 U.S. 355.

4. The modifications of the sixth and eighth instructions asked by defendant were in direct conflict with the ninth instruction for defendant.

Smoote McRae & Arnold for appellee.

1. A refusal to pay before the expiration of the day limited for payment is a waiver of the time. Wood on Fire Ins., note 1 P. 757; 34 Conn. 561; 31 S.W. 291; 26 S.W. 222. So where the company receives proofs of loss and objects merely to their form, this is a waiver of a breach of warranty. 31 S.W. 291; 11 S.W. 1016.

2. The knowledge of its adjuster was the knowledge of the principal. 11 S.W. 1016; Sprott v. Ins. Co., ante, p. 215; 9 N.E. 276.

3. Appellant is estopped by its acts (through its agent) from insisting on the breaches. 11 S. W., 1016; Sprott v. Ins Co., ante, p. 215.

4. Upon the legal propositions as to over-value, waiver of proof of loss, and the correctness of the instructions, see 95 U.S. 673; 111 U.S. 335; 9 How., 391; Am. Dig., 1889, pp. 684-5.

OPINION

BATTLE, J.

Gibson sued the German Insurance Company on a policy of fire insurance, alleging that the dwelling house thereby insured had been destroyed by fire. One of the defenses to this action was, that the policy had been issued on the faith of representations made by Gibson, the owner of the dwelling insured, and that these representations were declared in the policy to be warranties, and were false. Another defense was, that the action was prematurely brought.

Among the questions propounded to Gibson and answered in his application for insurance, was the following: "What is the size, area and condition of the dwelling house to be insured?" The answer as written in the application was: "It is constructed of frame, it is 50 by 60 feet, one story high, with wing 20 by 30 feet, one story high; it was built in 1863, and is in good condition." Another question was: "Do the stove pipes throughout the whole building enter into good brick or stone chimneys?" The answer appended was: "One pipe through secured with tin." In this application Gibson warranted these answers to be true, and they, with his warranty of their truth, were made a part of the policy sued on, and a condition on which it was issued. The defendant alleged that these answers were false in this: The size of the dwelling house "was 20 by 52 feet, with wing 12 by 52 feet," and was built many years previous to 1863, and there were two stove pipes in the building.

The policy contained the following stipulations: "The amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid ninety days after notice and satisfactory proofs of the same shall have been made by the assured, and received at the company's home office at Freeport, Illinois, in accordance with the terms and provisions of this policy hereinafter named." The loss occurred on the 20th of January, 1888, and Gibson sued on the policy on the 8th of March following, and before the expiration of the ninety days.

The defendant contended that plaintiff forfeited his policy because the answers to the questions propounded to him were false; and that his action was prematurely brought, because, "by the terms of the policy, the defendant was to have ninety days in which to determine, adjust and settle any loss that might accrue under the policy, and no cause of action accrued until the ninety days expired." On the other hand, plaintiff insisted that the defendant had waived the forfeiture by allowing successive proofs of loss to be made, without objection except for form, and, subsequently, waived all claims to the ninety days by denying that it was liable on the policy. There was some evidence adduced in the trial of the action that sustained this contention of plaintiff. It was to this effect: Soon after the dwelling house was destroyed, plaintiff notified the defendant company of the loss, and requested it to indicate at what time its adjuster might be expected, and in a short time thereafter sent to the company proofs of loss. In a few days Mr. Miles was sent to adjust the loss. He visited the plaintiff, and they examined the ground where the house stood and was burned. Miles said nothing about a breach of warranty at this time, but offered to settle the loss by paying $ 600, which plaintiff declined, and Miles departed. In the meantime other proofs were sent, and the company acknowledged the receipt of them and suggested amendments. Plaintiff made amendments. After this Miles went again to adjust the loss for the company, saw plaintiff and told him that the company was not liable to him in any amount, because he had made false representations in his application, explaining that the representations alluded to were those made in respect to the dimensions of the dwelling and to the stove pipes, and said that the company would pay him $ 1,000.00, and that if he did not accept that he would never get anything. Plaintiff declined to receive it in satisfaction of the amount claimed by him on his policy, and Miles withdrew all propositions. Several days after this plaintiff demanded an arbitration to determine the amount of his loss. This demand was made under a clause of the policy which provided that, in case of difference touching the amount of loss or damage, the matter should be submitted, at the request of either party, to impartial appraisers, one to be selected by each party, and the third by the appraisers so selected if they failed to agree. Miles, for the company, at first agreed and went to Hope, Arkansas, to meet plaintiff, ostensibly for the purpose of carrying the agreement into effect. Plaintiff selected his appraiser, and they went to the hotel where Miles had stopped, and found that he had gone, and this was the end of negotiations.

In support of plaintiff's contention, the court, over the objection of the defendant, in effect instructed the jury that, if plaintiff made false representations and warranties in his application as to the size, age and condition of his dwelling house, or the number of stove pipes therein, and the company was informed of that fact by an examination made by its adjuster, Miles, soon after the loss, and did not then claim a forfeiture for that reason, but allowed successive proofs of loss to be made, and objected to the same, one after another, on grounds of form, such action of the company was a waiver of forfeiture for such false warranties; and that if the defendant, being fully advised as to the facts and circumstances surrounding the loss insured against, denied all liability on the policy sued on, then the plaintiff had the right to sue at once; and that a denial by the defendant of the right of plaintiff to recover on account of breaches of warranty was a waiver of the proof of loss. The question is, did the court err in so instructing the jury?

An insurance company can take advantage of the breach of any condition contained in its policies and claim a forfeiture or waive the forfeiture; "and it may do this by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal...