Mason v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 30 January 1901
• Citation: 85 N.W. 13,82 Minn. 336
• Parties: MASON v. ST. PAUL FIRE & MARINE INS. CO.
• Court: Minnesota Supreme Court

82 Minn. 336

85 N.W. 13

MASON

v.ST. PAUL FIRE & MARINE INS. CO.¹

Supreme Court of Minnesota.

Jan. 30, 1901.

Appeal from district court, Ramsey county; Charles E. Otis, Judge.

Action by George A. Mason against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

1. By the terms of the Minnesota standard insurance policy, the insured is required to furnish the insurance company proofs of loss within a specified time after a loss occurs, but such policy does not provide that a failure to do so shall work a forfeiture of the rights of the insured, nor make the same a condition precedent to the liability of the company. It is held that the time within which such proofs are so required to be furnished is not of the essence of the contract, and a failure to furnish them within such time does not invalidate the policy, nor work a forfeiture of the rights of the insured.

2. No forfeiture being provided by the terms of the policy, the effect of a failure to comply therewith, as to time of furnishing such proofs, is to postpone the day of payment, and not to invalidate the policy.

3. Former decisions of the court examined and distinguished.

4. A defect of parties plaintiff, appearing on the face of the complaint, held waived, the objection not having been taken by demurrer.

On Rehearing.

Where there is a defect of parties plaintiff, and the objection is taken by answer, defendant is not, on the defect being shown on the trial, entitled to verdict on the merits of the action, but at most only to a dismissal; and when, in such case, no motion is made to dismiss the action because of such defect, it is waived. Palmer & Beek, for appellant.

Lane & Nantz and Thomas Kneeland, for respondent.

BROWN, J.

This action is one to recover upon a fire insurance policy, issued by defendant to plaintiff and one Mabey, covering a steam yacht on the waters of Lake Minnetonka. Plaintiff had a verdict in the court below, and defendant appeals from an order denying a new trial. The facts, briefly stated, are as follows: Plaintiff and Mabey jointly owned the yacht in question, and insured it in defendant company for the sum of $1,000, the policy of insurance being in the form of the Minnesota Standard Policy, and dated and issued July 14, 1899. On August 22d following the yacht was totally destroyed by fire, as alleged in the complaint. Proofs of loss were served upon defendant on October 10, 1899. Defendant refused to settle the loss, and this action followed. There are several assignments of error, but the main question for consideration is as to the effect of the failure on the part of the insured to make and serve on the company proofs of loss within the time prescribed by the terms of the policy, viz. forthwith, or, as we have heretofore held, within a reasonable time after the loss. The trial court charged the jury that plaintiff had failed to show a compliance with such provision, but that it was not material; that the failure did not invalidate the policy, nor prevent a recovery for an actual loss thereunder,-the theory of the court evidently being that as the policy contains no terms of forfeiture, and being silent as to the effect of a failure in that respect, a provision rendering the policy unenforceable, and the rights of the insured forfeited, could not be read into it by judicial construction. We have given the matter very carefully consideration, and reach the conclusion that the learned trial judge correctly disposed of the case. His charge to the jury was in line with the general trend of the authorities on the subject, and in full accord with the general principles of law on the subject of forfeitures. The question was not necessarily involved or considered in Rines v. Insurance Co. (Minn.) 80 N. W. 839, nor in Fletcher v. Insurance Co. (Minn.) 82 N. W. 647, and is now before the court for the first time.

On the subject of proofs of loss, the policy provides as follows: ‘In case of any loss or damage under this policy, a statement in writing, signed and sworn to by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured,’ etc. It further provides for the payment of any such loss within 60 days after proofs of loss are served. It contains several provisions, a violation or failure of compliance with which on the part of the insured renders it wholly void, but contains no provision or stipulation giving any such effect to a failure to serve proper proofs of loss within the time therein provided. Nor is there any general clause in the policy to that effect. The submission to arbitration as to the amount of loss, where the parties do not agree upon that question, is made a condition precedent to the right of action on the policy. The policy also provides that an action thereon must be brought within two years from the date of the loss, but contains no provision making the service of proofs of loss within the time specified fatal to the rights of the insured, or a condition precedent to the liability of the company.

It is very generally held by the authorities, in cases where this question has been presented, that unless the policy provides a forfeiture, or makes the service of proofs of loss within the time specified therein a condition precedent to the liability of the company, the time within which such proofs are required to be furnished is not of the essence of the contract. Where no forfeiture is provided by the terms of the contract, and the service of proofs of loss within the specified time is not made a condition precedent to the liability of the company, the effect of such failure is simply to postpone the day of payment. No liability attaches to the company, however, until such proofs are furnished; but unless otherwise provided, expressly or by fair implication, it is not important that the proofs be not in fact served within the time stated in the policy. 2 May, Ins. (4th Ed.) p. 1097, note a; Association v. Evans, 102 Pa. St. 281; Carpenter v. Insurance Co., 52 Hun, 249, 4 N. Y. Supp. 925;Vangindertaelen v. Insurance Co., 82 Wis. 112, 51 N. W. 1122;Rynalski v. Insurance Co., 96 Mich. 395, 55 N. W. 981;Assurance Co. v. Hanna (Neb.) 82 N. W. 97;Steele v. Insurance Co., 93 Mich. 81, 53 N. W. 514,18 L. R. A. 85;Insurance Co. v. Downs, 90 Ky. 236, 13 S. W. 882;Insurance Co. v. Mattingly, 77 Tex. 162, 13 S. W. 1016;Kahnweiler v. Insurance Co. (C. C.) 57 Fed. 562;Insurance Co. v. Knight (Ga.) 36 S. E. 821.

It was held by this court in Bowlin v. Insurance Co., 36 Minn. 433, 31 N. W. 859;Shapiro v. Western Home Ins. Co., 51 Minn. 239, 53 N. W. 463; Same v. St. Paul Fire...