Hartford Fire Insurance Company v. Landfare
| Decision Date | 08 January 1902 |
| Docket Number | 9,881 |
| Parties | HARTFORD FIRE INSURANCE COMPANY v. HARVEY LANDFARE ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Tried below before DICKINSON, J. Affirmed.
AFFIRMED.
Eleazer Wakeley and Arthur C. Wakeley, for plaintiff in error.
Hall & McCulloch, contra.
SEDGWICK C. OLDHAM and POUND, CC. concur.
This action was begun in the district court of Douglas county upon a policy of insurance, for the sum of $ 1,750. It is alleged in the petition that the defendant, plaintiff in error, in consideration of $ 52.50 premium, executed and delivered to the plaintiff, Harvey Landfare, its policy of insurance on the 16th day of October, 1888, whereby it agreed to, and did insure the said Harvey Landfare to the amount of $ 1,750, for the term of one year, on his factory building; that the policy stipulated that the loss, if any, was first payable to John Wendell, as his interest might appear; that on the 3d day of May, 1889, the building was totally destroyed by fire; that proofs of loss were duly presented; that the property insured was of the value of $ 5,000, and that Wendell held a mortgage on the property to the amount of more than $ 5,000,--and asked for judgment for $ 1,750 and interest from the 3d day of May, 1889. By a stipulation of the parties, a copy of the policy of insurance was attached to the petition. The answer admits the insurance of the property as alleged, and the destruction thereof by fire, and alleges that the proof of loss furnished was defective and insufficient; and it then sets out certain conditions of the policy and alleges that these conditions were violated, and the policy therefore void. The reply denies each and every allegation in the answer, except such as are expressly admitted in the petition or in the reply. It then alleges that defendant was, at all times in the petition and answer named, fully advised of the facts set out in the answer as to the incumbrances on the property, so far as the same are in said answer truly alleged, and alleges that, when plaintiffs claimed an insurance and made their proofs of loss, they fully advised the defendant of the facts in that regard, and that thereafter the defendant, in August and September, prepared other proofs of loss to be executed by the plaintiffs, and delivered the same to the plaintiffs to be signed; that these proofs of loss were untrue and false, and not within the terms of the policy, and that the plaintiffs, having already executed proper proofs, declined to sign the proofs so prepared by the defendant, and proposed to defendant to change the same to correspond to the fact, to which change the defendant consented; but subsequently, and while the negotiations respecting the same were pending, the defendant refused to further negotiate, and denied all liability, and declared that the defendant was not liable for any loss under said policy; and that during all the times set forth in the reply the defendant had full knowledge of all the facts alleged in the answer, and was advised of the same and took and received the instruments made in the case and prepared proofs of loss thereunder, and did every act and thing in connection with said insurance with full knowledge of all the facts. The cause was tried to a jury with verdict and judgment for plaintiffs, and the defendant brings the case here upon proceedings in error.
It is insisted that the allegations of the reply are not sufficient to avoid the defense set up in the answer, and this contention is predicated upon the proposition that there is no sufficient plea of waiver in the reply. The plaintiff, in order to avail himself of the waiver of the conditions of the policy, must plead such waiver. Phenix Ins. Co. v. Bachelder, 32 Neb. 490, 49 N.W. 217; Burlington Ins. Co. v. Campbell, 42 Neb. 208, 60 N.W. 599. But the reply alleges that the defendant was, at all times in the petition and answer named, fully advised of the facts set out in the answer as to the incumbrances on the property, so far as the same are in said answer truly alleged. This is an allegation that when the insurance was taken the company knew the condition of the property. The case was tried throughout upon the theory that the question of the waiver of forfeiture was one of the main issues of the case. The defendant requested an instruction submitting that question to the jury, which was given by the court. Under these circumstances the defendant can not now, for the first time, object that the reply was not sufficient to tender this issue.
It is next contended that the evidence was not sufficient to warrant a finding of waiver, and this contention is founded upon the proposition that under the provisions of the policy there could be no waiver of a breach of forfeiture, except in writing indorsed on the policy. The policy contained a provision to this effect. It is not doubted that this provision of the policy is binding upon the parties. The agent has no authority to make an oral contract with the insured waiving the express terms of the policy. But that is not the question involved here. The fact of the existence of the incumbrances upon the property, if unknown to the company at the time of writing the insurance, would render the policy voidable at the option of the company, and so changes in the title to the property after the insurance was effected would also render the policy voidable; but the right to declare this forfeiture can be waived by the company, and notice of breaches of the provisions of the policy given to the agent is notice to the company. Eagle Fire Ins. Co. v. Globe Loan & Trust Co. 44 Neb. 380, 62 N.W. 895; Home Fire Ins. Co. v. Bernstein, 55 Neb. 260, 75 N.W. 839. Some of the language of the opinion in German Ins. Co. v. Heiduk, 30 Neb. 288, must be understood as modified in these later cases. The question of notice to the company was submitted to the jury by an instruction requested by the defendant, and the evidence is sufficient to support the findings of the jury in that regard.
It is next contended that there was nothing in the conduct of the company sufficient to constitute an "estoppel." The fire occurred on the 3d of May, 1889. On the 6th of May the company's adjuster was in Omaha to investigate the loss. The plaintiff's attorney instructed him to go on and make an investigation, and he would then see him. The adjuster ascertained that the building was a total loss, and employed contractors to make estimates of the value of the building and then left Omaha telling the contractor to leave his estimates, when made, with the company's local agent. About a month later the adjuster returned to Omaha and received his estimates, but had no conversation with plaintiff or his attorney. On the 23d day of August the plaintiff's attorney wrote the company at Chicago, calling attention to the proofs of loss which had been sent in some time before, and stating that nothing had been heard from the company with respect to the proofs nor in regard to paying the loss, and asked the company to say whether it would pay the same. To this letter the adjuster answered, saying that he would be in Omaha within the next two weeks. The plaintiff's attorney...
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