Harris v. Phoenix Ins. Co.
| Decision Date | 17 May 1892 |
| Citation | 52 N.W. 128,85 Iowa 238 |
| Parties | J. T. HARRIS, Appellee, v. PHOENIX INSURANCE COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from the Wapello District Court, HON. C. D. LEGGETT, Judge.
ACTION to recover upon a policy of insurance against loss by fire There was a trial to a jury, resulting in a verdict and judgment for the plaintiff. The defendant appeals.
Affirmed.
M. J Williams and W. H. C. Jacques, for appellant.
W. W Cary and E. L. Burton, for appellee.
It is not claimed by the appellee that he gave notice accompanied by affidavit, as required by the policy and by statute. McClain's Code, section 1734. Section 3, chapter 211 of Acts of the Eighteenth General Assembly. He rests his right to recovery upon the claim that the appellant waived such notice and affidavit. The appellant contends that there is no evidence to support the allegation of waiver, and that the court, therefore, erred in overruling its motion for verdict, and in giving and refusing certain instructions. The undisputed facts are that on the twenty-first day of June, 1885, the appellee insured his residence, situated on a farm in Wapello county, in the appellant company, for one thousand dollars, and that on February 14, 1888, during the life of the policy, the building was totally destroyed by fire. On February 16, 1888, the appellee addressed to the appellant a postal card, as follows: Said card was received and answered by said Burch, as follows:
About March 1, 1888, Mr. C. H. Williams, the appellant's adjusting agent, having been advised of the loss by their general agent, went, as he says it was his duty to do, to the home of the appellee, at the place of the fire, to see him about the loss and investigate the facts. The appellee being absent from home at the time Mr. Williams did not see him, but had a conversation with appellee's wife (Mrs. Harris) concerning the loss, in the presence of two other persons. They all agree that Mr. Williams inquired of her as to the cause of the fire; that she said she did not know, and that it was not known; that he inquired who owned the land, how much there was of it, and whether under mortgage; and that she answered that she did not know. They also agree that he told her to tell her husband to come to Chillicothe, some three miles distant, the next morning, and bring his policy with him; that he (Williams) would be there until 1 o'clock. Mrs. Harris testified that "he said to tell Mr. Harris to come to Chillicothe, and he would settle the loss and pay up;" that she told her husband, but he did not go. Mr. Bailey, who was present, says: "Think he told Mrs. Harris to tell Mr. Harris to come to Chillicothe, and that he would settle with him there." Mr. Williams denies that he said anything about settling, adjusting or paying the loss; and Arthur Lukins, who sat in the buggy with him during the conversation, says he did not hear him say that he would settle and pay the loss. This is a sufficient statement to show the tendency of the evidence upon which a waiver is claimed, and the conflict therein.
"Waiver" is thus defined in Bishop on Contracts, (section 792): "Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right, and of his intention to rely upon it; and thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards." In Wood on Fire Insurance (section 496) it is said: The notice and affidavit required by statute are solely for the benefit of the insurer. Boyd v. Cedar Rapids Insurance Co., 70 Iowa 325, 30 N.W. 585. The principal, if not the only purpose of requiring this notice and affidavit, is to inform the insurer of the loss, the facts as to how it occurred, and the extent thereof, as a basis upon which to determine whether the insurer is liable, and to what extent, or, in other words, the basis upon which the insurer may proceed to adjust the loss. The notice and affidavit being for the benefit of the company, it is not questioned but that it may waive its right thereto.
The appellant contends that there is no evidence that is adjusting agent had any authority to waive notice and affidavit of loss, but it is not disputed but that the general agent had such authority. We think the letter from the general agent tends to show a waiver of further notice and of an affidavit. Without notice and affidavit, or a waiver thereof, the appellant was not required to act. There was no claim before it, and nothing to adjust. But if the postal card was accepted as sufficient notice, and affidavit was waived, then there was. It was under these circumstances that the general agent assured the appellee that the loss would have the attention of their adjuster at an early day. Had it been the purpose then to require notice and affidavit, surely some mention of that fact would have been made. But, instead, the appellee is informed that the appellant will proceed to do that which it was under no obligation to do, unless there was a waiver. If it was not the purpose to waive further notice and affidavit, why promise that the loss should have the early attention of the adjuster? Certainly this letter, written...
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