Larkin v. Glens Falls Insurance Company
| Citation | 83 N.W. 409,80 Minn. 527 |
| Decision Date | 20 July 1900 |
| Docket Number | 12,197 - (211) |
| Parties | JOHN LARKIN v. GLENS FALLS INSURANCE COMPANY |
| Court | Supreme Court of Minnesota (US) |
Action in the municipal court of St. Paul to recover $500 on a fire insurance policy. The case was tried before Hine, J., and a jury, which rendered a verdict in favor of plaintiff for the amount demanded. From an order denying a motion for a new trial, defendant appealed. Affirmed.
Insurance -- Proofs of Loss.
Where an insurance company, upon information that property covered by one of its policies has been damaged by fire, makes investigation into the cause of the fire, obtaining information sufficient to determine its liability, expressly recognizes such liability, and prepares proofs of loss from the information thus obtained, which it presents to the insured for signature, but which he refuses to sign because of a stipulation of settlement therein contained, the failure on the part of the insured to make and serve formal proofs of loss is waived.
Contract of Insurance -- Fire Limits.
A contract of insurance upon property within the fire limits of a city is presumed to have been entered into with reference to the ordinances of such city on the subject of the alteration and repair of buildings damaged by fire to the extent of fifty per cent. of their value.
Repair of Building Forbidden -- Measure of Loss.
In an action upon an insurance policy covering a building located within the fire limits of a city, and of a class the repair of which is, under certain conditions, prohibited by the city ordinances, recovery may be had as for a total loss when the repair of the building insured and damaged is prevented under and by reason of such ordinances; the value of what remains of the building after the fire over and above the cost of removing it from the premises being deducted therefrom.
Building Inspector -- Decision as to Damage.
Whether the determination of the building inspector of the city of St. Paul, or of the board of arbitration on appeal from his decision, that a building within the fire limits of such city has been damaged to the extent of fifty per cent. of its value, and therefore not subject to repair under the ordinance, is final and conclusive, and not subject to judicial review by the courts, quaere?
Building Inspector -- Impeachment.
Even though not final and conclusive, such determination can only be impeached by clear and convincing proof of fraud collusion, or mistake; and the burden of proof is upon the party who calls it in question.
C. E Joslin, for appellant.
Michael Johnston and George W. Walsh, for respondent.
This is an action to recover upon a fire insurance policy issued by defendant to plaintiff. Plaintiff had a verdict in the court below, and defendant appeals from an order denying a new trial. Three questions are presented for our consideration: (1) Whether defendant waived formal proofs of loss; (2) whether the action was prematurely brought; and (3) whether plaintiff sustained a total loss. This latter question may involve one or two other questions incident thereto, and is the important question in the case.
1. The policy was issued on March 10, 1899, and the property covered thereby (a building in the city of St. Paul) was damaged by fire on July 31 following. No written proofs of loss were ever made or served on defendant by the insured. But, within a day or two after the fire, defendant's local agent learned or was informed thereof, and made an immediate investigation and reported to the company. The company directed him to make further investigation, and to procure a competent builder to make an estimate of the cost of repairing the building; informing him at the same time that proper proofs of loss would be prepared and forwarded for signature by the insured. The agent made a further investigation, and obtained an estimate of the cost of the repair of the building, and made further report to his company. Proper proofs of loss were prepared by some agent of the company, either from information possessed by the local agent or obtained from the insured, and presented to the insured for signature. He refused to sign the same because of a stipulation therein binding him to a settlement of the loss for an amount equal to the estimated cost of repairing the building. The company made an offer of settlement and to pay the cost of repairing the building, which plaintiff declined to accept because the building inspector of said city had refused to grant a permit to repair it.
The company possessed all information concerning the fire, and of facts necessary to make up the proofs of loss, and was in no way injured by a failure on the part of plaintiff to sign the proofs presented to him by its agent. The company having become possessed of all facts necessary to a determination of the question of its liability, and having expressly recognized its liability, its conduct was certainly such as to lead the insured to the belief that formal proofs would not be required, and amounted to a waiver thereof. 13 Am. & Eng. Enc. (2d Ed.) 345, et seq.; Home Ins. Co. v. Baltimore Warehouse Co., 93 U.S. 527; Helvetia v. Allis, 11 Colo.App. 264, 53 P. 242; Fink v. Lancashire, 66 Mo.App. 513; Thierolf v. Universal, 110 Pa. St. 37, 20 A. 412; AEtna v. Simmons, 49 Neb. 811, 69 N.W. 125; Pennsylvania v. Dougherty, 102 Pa. St. 568.
2. This action was commenced on October 9, 1899. At least the summons was served on that day, as we understand it, and there is nothing in the record to show that it was in the hands of an officer for service at any date prior thereto. All acts of defendant and its agents which we hold justified a finding of a waiver of proofs of loss occurred prior to August 9. Sixty days, therefore, elapsed after such waiver before the commencement of the action, and it was not prematurely brought. Negotiations looking to a settlement of the loss were also had between the parties subsequent to August 9, but enough occurred prior thereto to constitute a waiver, and what occurred after that date is important only in corroboration.
3. The principal question in the case is whether plaintiff suffered a total loss. It is not claimed that the building was totally destroyed, but it is claimed that it was damaged to such an extent as to render it practically worthless without extensive repairs, and that it could not be repaired, because the building inspector refused to grant a permit authorizing the same....
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