Hartford Fire Ins. Co. v. Doll

• Decision Date: 05 January 1928
• Docket Number: No. 3892.,3892.
• Citation: 23 F.2d 443,56 ALR 1059
• Parties: HARTFORD FIRE INS. CO. v. DOLL.
• Court: U.S. Court of Appeals — Seventh Circuit

56 ALR 1059, 23 F.2d 443 (1928)

HARTFORD FIRE INS. CO. v. DOLL.

No. 3892.

Circuit Court of Appeals, Seventh Circuit.

January 5, 1928.

Burke G. Slaymaker, of Indianapolis, Ind. (Myers & Snerly, of Chicago, Ill., and Slaymaker, Turner, Merrell, Adams & Locke, of Indianapolis, Ind., on the brief), for plaintiff in error.

Woodfin D. Robinson, of Evansville, Ind., for defendant in error.

Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.

ALSCHULER, Circuit Judge.

This controversy grows out of two fire insurance policies issued by plaintiff in error company to defendant in error Doll, one for $2,000 on his stock of general merchandise and store fixtures, and one for $6,000, being $5,000 on the merchandise and $1,000 on store fixtures, all contained in a brick store building in Griffin, Ind. Two clauses of the policies are involved, viz.:

"If fire occur the insured shall within six days give notice of any loss thereby in writing to this company."

"If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease."

There are involved, also, the questions whether the judgment finds support in the evidence, and of the correctness of the court's charge respecting the measure of recovery.

Griffin was visited by a tornado, which destroyed all but 4 of its 75 houses, killing 50 of its inhabitants, and injuring others. Doll's store fell, and he was severely injured, being rendered unconscious for some days, blind for several weeks, and confined during that time, and some weeks more, in a hospital 25 miles away.

There was evidence to the effect that, just before the tornado struck, there was fire in the merchandise, counter, and shelving on the south side of the store, near a stove in which there was a hot coal fire burning. Following the building's fall, the inflammable débris, including the fallen merchandise, was burned; all of the stock and fixtures which had been covered by the policies being thus consumed by fire.

Doll could not and did not himself give to the company, within six days, notice of the loss. His father-in-law, Armstrong, who was the company's agent at Griffin, sent the company, within the six days, the report in writing of the loss, usual under the policies. After leaving the hospital, and within the time fixed by the policies, Doll supplied the company with proofs of loss, setting forth a total loss by fire under the policies; the sound value of the stock and fixtures before any fire or tornado being fixed at over $16,000.

The court charged the jury, in effect, that, if there was fire in the merchandise and fixtures before the tornado caused the building or any substantial part of it to fall, the company would be liable to the same extent as if the insured property had been wholly destroyed by fire, and the tornado had not intervened. The verdict was for the full amount of the policies, and judgment was given accordingly.

We consider first the company's contention that Doll's failure to give the notice under the six-day clause of the policy barred his right to maintain the suit. To this we cannot accede. The clause in no way concerns the indemnity itself, but only the procedure after loss under the policies has accrued. Whatever the office of the clause may be under usual conditions, it is hardly possible that its literal application to the extraordinary circumstances here appearing was within the intent of the parties.

The Supreme Court considered a question quite similar in principle in Germania Fire Ins. Co. v. Boykin, 12 Wall. 433, 20 L. Ed. 442. There the policies required that in case of loss the insured render the insurers a statement of the origin of the fire, particular account of the loss, etc., to be signed and sworn to by the insured. He submitted his affidavit containing statements which, if true, would have invalidated the policies. For the insured it was contended he was insane when he made and submitted the affidavit, and thereupon the companies maintained that, if he was insane, the required proof was not supplied, and the action must fail for want of it. Of this contention the court said: "It is too repugnant to justice and humanity to merit serious consideration. There are two obvious answers to it. * * * Second, if he was so insane as to be incapable of making an intelligent statement, this would of itself excuse that condition of the policy."

Other cases where courts have held that impossibility of compliance will excuse performance of conditions appertaining to procedure after loss occurs under insurance contracts, are Woodmen Accident Ass'n v. Pratt, 62 Neb. 673, 87 N. W. 546, 55 L. R. A. 291, 89 Am. St. Rep. 777; Reed v. Loyal Protective Ass'n, 154 Mich. 161, 117 N. W. 600; Stevens & Co. v. Frankfort Marine, etc., Co. (C. C. A.) 207 F. 757, 47 L. R. A. (N. S.) 1214.

But in our view the record discloses a further reason why the clause does not bar the action. From the testimony of the company's local agent, Armstrong, it is fairly inferable that in this, as in all cases, it is the company's local agent who, learning of the loss, undertakes compliance with the requirement of notice, by sending to the company, on blanks provided by the company for that purpose, the first information respecting the occurrence, and the desired details. Armstrong made such report to the company, not only of this but of other cases where he had placed such policies and the insured property was burned on that occasion. He represented several companies, all of which had supplied him with such loss report blanks. Some of the blanks became lost in the storm, and he used for all the losses such as he had remaining. The conclusion that it was contemplated that the policy provision for this notice would, in practice, be complied with through this report of the agent, is helped by a printed clause on the report blank, which is:

"Instructions to Insured. — It is the duty of the insured to use his best endeavors to protect the property insured against loss or damage both during and after a fire. Follow the directions of the policy in this matter. Agents will so instruct insured, should such instruction be necessary."

This is, in effect, a direction by the company to its agent to notify the insured to do something which, in the same sentence of the policy as that which prescribes the notice of loss, and in terms no less imperative, requires the insured to do the very things whereof the agent, by this clause, is directed to remind him. The fair inference is that the information of the fire will be communicated through the agent; but as to the care of the property after the fire the agent should remind the insured of his contractual duty, which manifestly the insured, rather than the agent, is ordinarily best able to perform.

It is contended for the company that the evidence wholly fails to show that the burning of the property insured commenced before the fall of the building, or any part of it, and that therefore its motion for a directed verdict should have been granted. Concededly, if the insured property did not start to burn until after the building fell, the fallen building clause of the policies would bar recovery. It appears that, very shortly before the tornado which destroyed the building, there was a blast of...