Johnson v. Dakota Fire & Marine Ins. Co.

• Decision Date: 06 May 1890
• Docket Number: 6731
• Citation: 45 N.W. 799,1 N.D. 167
• Court: North Dakota Supreme Court

45 N.W. 799

1 N.D. 167

W. E. JOHNSON, Plaintiff and Respondent, v. DAKOTA FIRE & MARINE INSURANCE COMPANY, Defendant and Appellant

No. 6731

Supreme Court of North Dakota

May 6, 1890

APPEAL from district court, Grand Forks county; Hon. CHARLES F TEMPLETON, Judge.

Affirmed.

Messrs Dillon & Preston for appellant, cited upon the proposition stated in paragraph 3 of the foregoing syllabus the following cases: Globe Ins. Co. v. Wolf, 95 U.S. 329; Ins Co. v. Norton, 96 id. 240; Am. Ins. Co. v. McWharter, 11 Ins. Law Journal, 147; Susquehanna Ins. Co. v. Swank, 12 Ins. Law Journal, 625; Ryan v. Worlds Ins. Co., 41 Conn. 68; N. Y. Life Ins. Co. v. Fletcher, 117 U.S. 519. As to paragraph No. 4 they cited: Am. Ins. Co. v. Neiberger, 74 Mo. 167; Richardson v. Maine Ins. Co., 46 Me. 394; Smith v. Con. Ins. Co., 43 N.W. 810.

In opposition to the rule declared in paragraph 6 they cited: Smith v. State Ins. Co., 21 N.W. 145; May on Ins. 507; Davidson v. Young, 38 Ill. 152; Flower v. Elwood, 66 Ill. 447; Powell v. Rogers, 105 Ill. 318; N. W. Ins. Co. v. Amenman, 10 N.E. 225; Shimp v. Cedar Rapids Ins. Co. 16 N.W. 229.

J. H. Bosard (P. J. McLaughlin, of counsel,) for respondent, cited, in opposition to the rule declared in paragraph 2 of the syllabus, the following: Cont. Ins. Co. v. Rogers, 119 Ill. 474, (S. C. 59 Am. Rep. 810); Alabama, etc. Co. v. Johnson, 2 So. Rep. 125; May on Ins. §§ 181-4; Phenix Ins. Co. vs. Raddin, 120 U.S. 183; Moulor v. Am. Ins. Co., 111 U.S. 335; Southern Ins. Co. v. Booker, 24 Am. Rep. 344; May on Ins. §§ 156, 162-5; Carson v. Jersey City, etc., Co., 14 Vroom. 300; Bank v. Hartford Ins. Co., 95 U.S. 673; Lynchburg, etc., Co. v. West, 76 Va. 575, (S. C. 44 Am. Rep. 177;) Waterbury v. Dak., etc., Ins. Co., 43 N.W. 697; Fitch v. Am., etc., Co., 59 N.Y. 557; Washington Ins. Co. v. Raney, 10 Kan. 525; Schwarzbach v. Ohio, etc., Co., 25 W.Va. 622, ( S. C. 52 Am. Rep. 227;) Helbing v. Svea, Ins. Co., 54 Cal. 156, (S. C. 35 Am. Rep. 72;) Price v. Phenix Ins. Co., 17 Minn. 497; Campbell v. N. E., etc., Co., 98 Mass. 381; M. & M. Ins. Co. v. Schroeder, 18 Bradw. 216; Elliott v. Ins. Co., 13 Gray 139; Anderson v. Sup. Grand Lodge, etc., 17 A. 119; Clapp v. Mass. Benefit Assn., 16 N.E. 433.

In support of the rule stated in paragraph 3 they cited among other cases: Andes Ins. Co. v. Fish, 77 Ill. 620; Kausel v. Farmers etc. Co., 16 N.W. 430; Ins. Co. v. Wilkinson, 13 Wall. 222; Jewett v. Carter, 132 Mass. 135; Ins. Co. v. Allen, 10 N. E., 85; Sullivan v. Ins. Co., 8 P. 112; Planters Ins. Co. v. Baxter, 25 Am. Rep. 780; Gans v. St. P. F. & M. Ins. Co., 43 Wis. 108; Manhattan Ins. Co. v. Weile, 26 Am. Rep. 364; Rowley v. Empire Ins. Co., 36 N.Y. 550; Com. Union Ins. Co. v. Elliott, 13 A. 970; Miller v. Phenix etc., Co., 14 N.E. 271. In support of the sixth paragraph they cited: Phenix etc., Co. v. Raddin, 120 U.S. 183; Wilson v. M. F. etc. Co., 30 N.W. 401; Masonic etc., Asso. v. Beck, 77 Ind. 203, (S. C. 40 Am. Rep. 295;) Stone v. Hawkeye Ins. Co., 28 N.W. 147; Smith v. St. P. F. & M. Co. 13 N.W. 355; Phenix Ins. Co. v. Lansing, 20 N.W. 22; Frost v. Saratoga etc., Co., 5 Denio 154; Fitzgerald v. Hartford etc., Co., 13 A. 673; Knickerbocker Ins. Co v. Norton, 96 U.S. 234. As to the waiver of proofs of loss they cited: Brink v. Hanover Ins. Co., 80 N.Y. 108; Ins. Co. v. Norton, 96 U.S. 284; Travelers Ins. Co. v. Edwards, 122 id. 457; Cleaver v. Traders Ins. Co. 39 N.W. 571; Badger v. Glens Falls Ins. Co. 49 Wis. 389.

WALLIN, J. CORLISS, C. J., did not sit; RODERICK ROSE, judge of the fifth judicial district, sitting by request.

OPINION

WALLIN, J.

This action is based upon a hail insurance policy issued by the defendant from its office at Chamberlain, Dak., and sent from there by mail to the plaintiff. The policy bears date May 13, 1885, and was issued in consideration of the receipt of a premium note for $ 70, executed by the plaintiff and delivered to the defendant, and falling due October 1, 1885. In consideration of this note the policy declares that the defendant "does insure W. E. Johnson for the term of six months, from the 6th day of May, 1885, to the 6th day of November, 1885, at 12 o'clock noon, against loss or damage by hail to 100 acres growing crops, the property of assured, located and described as follows." It is conceded that "on the 15th and 28th days of July, 1885," the grain in question was damaged by hail to the amount of $ 1,375.04, and that plaintiff is entitled to that amount, less the accrued amount of the premium note, if entitled to recover at all.

By its answer, defendant admits issuing the policy upon the plaintiff's written application therefor annexed to the complaint, that no part of the loss has been paid, and that the premium note was not due when the loss occurred. "And for further answer defendant alleges that said policy of insurance contained the following covenant, viz.: 'Now, therefore, the capital stock and securities of said company shall be subject to make good unto the said assured, at the specified rate and terms of Schedule No. 2, on the back hereof, at 70 cents per acre, his, her, or their heirs, executors, administrators, or assigns, all such immediate loss or damages as may occur by hail to growing crops as above specified, described and located, and as set forth in the application for this insurance, but not exceeding the cash value thereof, nor the interest of the assured in the property, nor the average yield per acre, as provided herein, for the term of six months, from the 6th day of May, 1885, at noon, to the 6th day of November, 1885, at noon, and to be paid according to the terms and conditions hereof, but not until requisite proofs, duly sworn and certified to by the assured and one disinterested party, are received at the office of the company in Chamberlain, Dakota. But in no case will this company be liable for any loss or damage that may occur seven days after the crops hereby insured shall have matured.' That the plaintiff has wholly failed to make any proofs of loss certified and sworn to by assured and one disinterested party, and that the plaintiff has not in any manner furnished to this defendant, at any time before the commencement of this suit, at the office of the company in Chamberlain, Dak., or at any other place, any proofs of loss whatever, and has wholly failed to comply with the provisions of the policy. And for further answer defendant alleges that it is provided in said policy of insurance that, 'when a loss shall have occurred, assured agrees to make and send by registered mail a statement thereof, not sooner than five and not later than ten days thereafter, if the crops are yet green. If ripe such notice must be mailed not later than the day following the loss.' Defendant avers that the plaintiff failed to make or send by registered mail a statement of his loss within the time mentioned, not sooner than five days and not later than ten days thereafter, nor did plaintiff in any manner send by registered mail a statement of said loss, showing that the grain was ripe, within the day following the loss; that the said plaintiff wholly failed to furnish the said information by registered mail within the time provided by said policy, or at any other time.

And defendant, further answering, alleges that the said policy of insurance contained the following covenant and agreement 'It is also mutually agreed and made a part of this contract that no suit or action for the recovery of any claim for loss or damage under this policy shall be sustained in any court of law or equity until after an award, on demand of either party, shall have been made by arbitration in the manner hereinbefore provided, nor unless such suit or action shall be commenced before the expiration of six months next ensuing after the loss; and, unless such suit or action shall be commenced within the said time, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute to the contrary notwithstanding.' That this action was not commenced within six months from the date upon which said alleged loss occurred; that the said suit was commenced on March 24, 1888. And defendant for further answer alleges that the policy of insurance so issued, contained the following covenant, viz: 'Assured's application, of even number and date herewith, on file in the office of the company, in Chamberlain, Dakota, is hereby referred to as a part hereof, and is a warranty on the part of assured, and the basis upon which this insurance is written.' That said application referred to in said policy contained the following provision: 'The statements above made by me, and answers to the questions above given, are true, and a warranty on my part, and are the basis upon which I ask hail insurance, by the Dakota Fire & Marine Insurance Company, on the crops herein described.' Defendant avers that said application contained the following questions and answers, viz: 'Are your lands incumbered? If yes, for how much? Answer. $ 300. What is the land worth per acre? A. $ 20. Are the crops on the above-described land mortgaged or otherwise incumbered? If so, for how much? A. No.' Defendant avers that each of said questions and answers was material information to be known by the defendant, in order to determine the desirability of the risk, and the rate of premium to be paid therefor. And defendant, upon information and belief, avers that the said land was incumbered in excess of $ 300, and that the said land was not worth $ 20 per acre, or in any sum greater than $ 10 per acre, and that the crop described on said land was mortgaged and incumbered, and that defendant made false answers to each of said questions; that in truth and fact the said real estate was...