Milwaukee Mechanics' Insurance Co. v. Stewart

• Decision Date: 26 November 1895
• Docket Number: 1,495
• Citation: 42 N.E. 290,13 Ind.App. 640
• Parties: MILWAUKEE MECHANICS' INSURANCE CO. v. STEWART ET AL
• Court: Indiana Appellate Court

42 N.E. 290

13 Ind.App. 640

MILWAUKEE MECHANICS' INSURANCE CO. v. STEWART ET AL

No. 1,495

Court of Appeals of Indiana

November 26, 1895

From the Blackford Circuit Court.

Judgment affirmed.

S. N Chambers, S. O. Pickens and C. W. Moores, for appellant.

J Cantwell, S.W. Cantwell and C. F. Coffin, for appellees.

OPINION

REINHARD, J.

This is an action by the appellees against the appellant on a policy of fire insurance. The complaint is in three paragraphs. There was a demurrer to the third paragraph of the complaint which was overruled, and this ruling was excepted to and is here assigned as error. One of the objections urged to this pleading is that there is no copy of the contract declared upon filed as an exhibit therewith. It is averred that a copy of the contract of insurance is filed marked "Exhibit A," and is made a part of the complaint. It is admitted that there is an 'Exhibit A' filed with the complaint and copied in the transcript, but it is insisted that this is not the one referred to in the first and second paragraphs of the complaint. The practice is well settled by the decisions that where an exhibit is once filed with a pleading it will answer as an exhibit for all subsequent paragraphs of the same pleadings of which it is made a part. Ohio Thresher, etc., Co. v. Hensel, 9 Ind.App. 328; Glass v. Murphy, 4 Ind.App. 530, 30 N.E. 1097. What is said of this exhibit applies equally to 'Exhibit B,' which is a copy of the written assignment of the policy. It appears in the record, and is sufficient as an exhibit in any paragraph in which it has been referred to as such.

The policy contains a stipulation that "if fire occurs the appellee shall give immediate notice of any loss thereof in writing and within sixty days after the fire, unless such time is extended in writing by the company, shall render a statement to the company, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of the loss thereon, all incumbrances thereon, all insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies, any change in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire, and shall furnish, if required, modified plans and specifications of any building, fixtures or machinery destroyed or damaged." It is alleged that the appellees have performed all the conditions on their part to be performed, except that they did not immediately notify the appellant in writing of said loss for the reasons stated in said pleading.

It is insisted that the paragraph under consideration shows on its face that the stipulation above set forth has been violated in that the appellees did not give the notice required by the contract. The pleading undertakes to set out at length the various steps taken to comply with the terms of the policy after the loss. It is averred in this connection that the loss occurred on the 22d day of April, and "that the plaintiffs immediately thereafter, on the 24th day of April, notified said Rhoades and Kinney, who at the time of the execution of the policy and ever since have been the agents of said company in said town, of said loss." It is further alleged in this paragraph that on the 23d day of April, one day after the fire, the agents, Rhoades and Kinney, notified the defendant of the loss, both by telegram and letter, and that, on the 27th day of April, the said agents notified the defendant by telegram that the loss of the plaintiffs was total. The further allegation occurs that the said agents, Rhoades and Kinney, notified the plaintiffs that they need not give any further notice of the loss, as they, the agents, had already notified defendants of such loss, and that an adjuster would come in a few days to adjust the loss. It is further averred that the adjuster did come on the 27th day of April, just a week after the loss. It is also alleged that the appellees made proof of loss on the 17th day of June, 1893, and within sixty days after the fire, and that thereafter, and more than sixty days prior to the bringing of this action, the appellees, at the request of appellant, made additional proof of loss.

Notice to the agent was notice to the company. North British etc., Ins. Co. v. Crutchfield, 108 Ind. 518, 9 N.E. 458. The object of the requirement for notice is that the company shall be authoritatively informed of the loss. If the insured notify the agent, and the latter send written notices to the home office and the company act upon such notice, strict performance of the requirement as to notice is waived. Ohio Thresher, etc., Co. v. Hensel, supra, at p. 341; McCormick Harvesting Mach. Co. v. Gray, 100 Ind. 285.

That the appellant was entitled to notice of such character as the policy specified, cannot be questioned. But it had the undoubted right to waive such notice. Had the company refused or simply failed to act upon the notice given when received by it, there might be some justice in its assertion that it refused to pay because it had not received such notice as the contract required. No waiver could have been inferred from mere silence. But when it acted upon the notice and recognized the sufficiency thereof by requiring additional proof of loss and by sending an adjuster, as alleged, thus requiring the insured to perform additional acts and perhaps incur additional expense, it waived strict performance of the condition named. Replogle v. American Ins. Co., 132 Ind. 360, 31 N.E. 947; Springfield Engine etc., Co. v. Kennedy, 7 Ind.App. 502, 507, 34 N.E. 856.

it is earnestly insisted, however, that the paragraph before us is fatally defective for another reason. Proviso 15 of the policy declared upon reads as follows:

"In the event of a disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss and state separately sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss."

And proviso 19 of said policy reads thus: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with the foregoing requirements, nor unless commenced within twelve months next after the fire."

A stipulation in an insurance policy that the parties will submit any disagreement as to the amount of damage by fire to arbitration is valid and binding upon the parties, and if the agreement to submit to arbitration is by the terms of the contract made a condition precedent to the maintaining of an action on the policy, such action cannot be maintained unless and until the requirement has been fulfilled. Manchester Fire Assur. Co. v. Koerner, 13 Ind.App. 372, 40 N.E. 1110; Wood Fire Ins., section 456.

Ordinarily, it is sufficient for the plaintiff to aver in his complaint that he has performed all conditions precedent on his part to be performed, without expressly alleging that the claim does not fall within one of the conditions named. Louisville Underwriters v. Durland, 123 Ind. 544, 24 N.E. 221.

Appellant's counsel concede the correctness of this as a general rule, but insist that the averments of this complaint take it out of the general rule and cast upon the appellee the duty of averring a waiver of the condition.

Clause 19, above quoted, provides that no action is maintainable upon the policy until the insured shall have complied with all of its requirements. One of the requirements is that the amount of the loss, in case of failure to agree upon the same, shall be submitted to arbitration. The submission to arbitration by the insured, where the contract requires him to procure the arbitration, is a condition precedent to the recovery on the policy. Wood Fire Ins., section 457; May Ins., section 495; Flaherty v. Germania Ins Co. (Penn.), 7 Ins. L. J. 226; United...