Knudson v. Hekla Fire Ins. Co.
| Decision Date | 03 December 1889 |
| Citation | 75 Wis. 198,43 N.W. 954 |
| Parties | KNUDSON v. HEKLA FIRE INS. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, St. Croix county; E. B. BUNDY, Judge.
Action upon a policy issued by the defendant company, insuring the plaintiff against loss of, or damage to, his barn, and certain personal property by fire, for three years from August 17, 1887, in the sum, in the aggregate, of $850. On November 11, 1887, the barn and most of the insured personal property were destroyed by fire. The policy contains a stipulation, in the form usual in fire insurance policies, requiring the assured, in case of loss, to render to the company sworn proofs of loss, containing certain specified information, within 30 days after such loss, and that the loss is not payable until after such proofs are so rendered. No proofs of loss were ever rendered to the company, but the plaintiff claims the same were waived by the company. To establish such waiver the plaintiff relies exclusively upon certain conversations had about a week after the fire. One of these was between himself, his son, who acted as his interpreter, the plaintiff not understanding the English language, and two agents of the defendant pany,--McCurdy, its general agent and adjuster, and Gilbert, one of its local agents, who issued the policy in suit. These persons met accidentally, and the conversation was concerning the plaintiff's loss. The other conversations were between Gilbert and himself and son. The testimony on the part of the plaintiff as to what occurred in the conversation with McCurdy is to the effect that at the request of McCurdy plaintiff's son made a statement to him of the property destroyed, and its value, of which statement McCurdy made a memorandum in writing: and that McCurdy disputed the accuracy of such estimated value, claiming it was too large, but finally offered plaintiff $600 in settlement of his claim; that plaintiff refused to accept such offer, and McCurdy refused to pay more than $600 on account of his loss, and intimated to the plaintiff that if he did not accept the offer he would have to sue the company. On the part of the defendant, the testimony is that McCurdy did not offer to pay $600, but said, if plaintiff would agree to settle for that sum, he would advise the company to pay it; and that when plaintiff refused to take that sum McCurdy told him the whole matter must stand as though their interview had not taken place, and the plaintiff must seek his remedy according to the terms of the policy. The testimony is quite voluminous, but the above is believed to be a fair statement of the substance thereof. At the close of plaintiff's testimony, counsel for defendant moved for a nonsuit, which motion was denied. He also asked the judge to instruct the jury to return a verdict for the defendant. The judge refused so to instruct, but submitted the question of waiver to the jury on the testimony. The jury found for the plaintiff, and assessed his damages at nearly the full amount of insurance written in the policy. A motion for a new trial was denied, and judgment for the plaintiff entered, pursuant to the verdict. The defendant appeals from the judgment.Lusk & Bunn and Baker & Helms, for appellant.
S. N. Hawkins. L. P. Wetherby, and R. H. Start, for respondent.
LYON, J., ( after stating the facts as above.)
By the terms of the policy in suit, the rendering of sworn proofs of loss to the defendant company, within...
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