Jensen v. Palatine Insurance Co.
| Decision Date | 23 April 1908 |
| Docket Number | 15,174 |
| Citation | 116 N.W. 286,81 Neb. 523 |
| Parties | CARL JENSEN ET AL., APPELLEES, v. PALATINE INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Boone county: JAMES R. HANNA JUDGE. Affirmed.
AFFIRMED.
Greene Breckenridge & Matters, for appellant.
Charles B. Keller and M. W. McGan, contra.
CALKINS C. FAWCETT and ROOT, CC., concur.
The plaintiffs were proprietors of a general store at Bradish, a postoffice in Boone county, near Albion; their store being the only business house at that place. They were carrying insurance against loss by fire in the sum of $ 2,000, and on the 25th day of November, 1904, the defendant wrote its policy in the additional sum of $ 3,000 for the time of one year from said day, and on the 17th day of January, 1905, the store was destroyed by fire, only about $ 500 worth of goods being saved. The plaintiffs had no recent inventory, and the books and papers were destroyed in the fire. On the 1st day of February, 1905, the defendant's adjuster arrived, and, after the signing by one of the plaintiffs and the adjuster of what is called by counsel a nonwaiver agreement, interrogated the plaintiff Jensen as to the amount of his sales for the three years last preceding. The estimates of such sales, as made by Jensen, were put in the form of an affidavit, and the adjuster then requested, or at least suggested, that Jensen secure duplicate invoices, which he undertook to do, and employed an attorney to conduct a correspondence to that end. After writing numerous letters, but failing to hear from all the firms who had sold plaintiffs goods, and the amount of the goods shown by the duplicate bills actually obtained being considerably less than the estimate of Jensen, the attorney so employed by plaintiffs submitted the result of his labors to defendant's adjuster, who afterwards, on the 9th day of March, 1905, addressed to plaintiffs a letter notifying them that the defendant denied any and all liability under its said policy. This action was commenced April 11, 1905, and a trial was had in October, 1906, resulting in a verdict for plaintiffs. Upon this verdict a judgment was afterwards rendered, from which defendant appeals.
1. There was attached to and made a part of the policy what is denominated "the iron-safe clause," which was in the words following: The plaintiffs had taken no inventory, and had no fire-proof safe. Their books of account, which seemed to have been kept in their store building, were destroyed by the fire. The fire did not, however, occur when the store was closed, and when the books were, by the clause above quoted, required to be locked in a fire-proof safe. It was contended by the defendant that the failure to take an inventory and keep it locked in an iron safe in the building was a breach of one of the conditions contained in this clause, which forfeited the plaintiffs' right to recover upon the policy. Upon this question the trial court instructed the jury that the plaintiffs had one year from the time the policy was issued to make the inventory. This, we think, was correct. If a party on a given date stipulates to perform a specified act at least once in each year, and no date is fixed for its first performance, he cannot be said to be in default at any time before the end of that period. Continental Ins. Co. v. Waugh & Son, 60 Neb. 348, 83 N.W. 81; Connecticut Fire Ins. Co. v. Jeary, 60 Neb. 338, 83 N.W. 78; Citizens' Ins. Co. v. Sprague, 8 Ind.App. 275, 35 N.E. 720. It is urged that under such interpretation the stipulation is valueless, because it makes it unnecessary for the assured to do what they had agreed until the expiration of their policy, but such is the plain meaning of the language, and we are not permitted to construe it otherwise, especially when the result would be to enforce a forfeiture. If the defendant is entitled to a forfeiture of the policy, it is because it is so denominated in the contract, and a clause calling for such forfeiture should not be aided or given effect by construction in a case where the plain meaning of the language used does not require it. Continental Fire Ins. Co. v. Jeary, supra.
2. It is contended by defendant that the part of the iron-safe clause which requires the books to be kept in the safe when the store is closed is independent of the clause requiring the inventory, and that, by plaintiffs' failure to so keep such books in such safe before the inventory was taken, their right to recover under the policy was forfeited. On the other hand, it is argued by plaintiffs that, since the only value, so far as the policy is concerned, such books of account could have would be to show the current increase and diminution of the stock, it was evident that their keeping should begin with the taking of the inventory, and that, therefore, there could be no default in the keeping of the books until an inventory which should furnish a starting point for them should be had, and this view is supported by the case of Hanover Fire Ins. Co. v. Dole, 20 Ind.App. 333, 50 N.E. 772. We do not find it necessary to determine this question. It appears that at the time of taking the policy defendant's recording agent, Mr. Brady, who wrote the risk, was fully apprised that the plaintiffs had no iron safe in their store, nor safe place elsewhere in which to keep their books and papers, and for that reason Mr. Brady himself undertook to keep the policy for plaintiffs. Had Mr. Brady written such a policy himself as his own contract of insurance, and then undertaken to care for the policy because the assured had no place to protect it from fire, such act would have clearly been a waiver of the provision requiring the assured to keep his books in a fire-proof safe. When one in possession of any right secured by contract does something inconsistent with the existence of his right or with his intention to rely upon it, he is precluded from afterwards claiming anything by reason of it. Bishop, Contracts (2d ed.), sec. 792. This rule has by this court been often applied to contracts of insurance. Billings v. German Ins. Co., 34 Neb. 502, 52 N.W. 397; Home Fire Ins. Co. v. Phelps, 51 Neb. 623, 71 N.W. 303; Hartford Fire Ins. Co. v. Landfare, 63 Neb. 559, 88 N.W. 779. In the case of a corporation, it is charged with notice of facts which were known at the time to its agent who had charge of the transaction. Cook, Corporations (5th ed.), sec. 727. This, too, has been by this court held to apply to notice received by recording agents of insurance companies while engaged in the business of their principal. 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; Hartford Fire Ins. Co. v. Landfare, 63 Neb. 559, 88 N.W. 779. The court below took the view that, if these facts were true, they might constitute a waiver on the part of the defendant of this clause, and submitted the question to the jury on that theory. In so doing it committed no error of which the defendant can complain.
3. It is contended by the defendant that there was no competent proof of the value of the goods destroyed, and that therefore, the verdict was not sustained by the evidence. The objections urged by the defendant seem to us to go to the weight of the testimony of the several witnesses, rather than to their competency. The plaintiff Jensen testified to the value of the goods. He had purchased the same, they were in his personal charge, for a long time he had been selling from the stock at retail, and was undoubtedly competent to speak of the value of any particular article. In proving the value of personal property, it is usually held that the owner is allowed to estimate its value, whether he is qualified as an expert or not. 1 Wigmore, Evidence, sec. 716. In Langdon v. Wintersteen, 58 Neb. 278, 78 N.W. 501, complaint was made of the admission of the testimony of a witness as to the value of a stock of millinery goods; her only qualifications being that she had frequently priced and bought similar goods at retail, and knew their value in a general way. It was said by the court that this was sufficient; that the weight of her testimony was for the...
To continue reading
Request your trial