Providence Washington Insurance Company v. Wolf

• Decision Date: 08 February 1907
• Docket Number: 20,987
• Parties: Providence Washington Insurance Company v. Wolf
• Court: Indiana Supreme Court

80 N.E. 26

168 Ind. 690

Providence Washington Insurance Company v. Wolf

No. 20,987

Supreme Court of Indiana

February 8, 1907

Rehearing Denied June 26, 1907.

From Monroe Circuit Court; James B. Wilson, Judge.

Action by Leo Wolf against the Providence Washington Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under clause two, § 1337j Burns 1901, Acts 1901, p. 565, § 10.

Affirmed.

Smiley N. Chambers, S. O. Pickens, Charles W. Moores, R. F Davidson, Owen Pickens and Duncan & Batman, for appellant.

Alexander Dowling, East & East and J. E. Henley, for appellee.

OPINION

Monks, J.

This action was brought by appellee against appellant on a fire insurance policy issued by appellant to appellee, insuring him against loss or damage by fire, upon a certain stock of goods, wares, merchandise, furniture, and fixtures therein described, in the sum of $ 1,000. There was $ 8,500 additional insurance upon the property, making $ 9,500 in all. A plea in abatement was filed by appellant. Appellee filed a reply to said plea in two paragraphs, the first of which was a general denial. Appellant's devalue; murrer for want of facts, to said second paragraph of reply, was overruled. A trial of the issues joined on the plea in abatement resulted in a verdict and, over a motion for a new trial, a judgment in favor of appellee. Appellee's demurrer, for want of facts, to the complaint was overruled. Appellant answered in five paragraphs, the first being a general denial. On motion of appellee, the second and third paragraphs of answer were stricken out. Appellee filed a general denial to the fourth and fifth paragraphs of answer. A trial by jury resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee for the full amount of the policy.

The assignments, which are not waived, are "that the court erred (1) in overruling the demurrer to the second paragraph of reply to the plea in abatement; (2) in overruling appellant's motion for a new trial upon the plea in abatement; (3) in overruling the demurrer to the complaint; (4) in striking out appellant's second paragraph of answer; (5) in striking out the fourth paragraph of answer; (6) in overruling the motion for a new trial upon the merits of the case." We will first consider the demurrer to the complaint. The policy upon which suit was brought contained, among others, the following provisions:

"This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused.

Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers as hereinafter provided.

If fire occur the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire.

In the event of 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 shall together then estimate and appraise the loss, stating 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; the parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expense of the appraisal and umpire.

This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirements, act or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.

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 all the foregoing requirements, nor unless commenced within twelve months next after the fire."

It is admitted by appellee that said provisions of the policy respecting the proofs of loss and the arbitration of the amount of the loss are conditions precedent, and no question is made as to their validity. It is contended, however, that there was a waiver of these conditions by appellant. The allegations of the complaint concerning such waiver are, substantially, as follows: That, immediately after the fire, the plaintiff notified the defendant of the loss, and on January 14, 1903, the defendant sent its adjusters to the city of Bloomington to adjust said loss, who, after an examination of the premises, the stock of goods and conditions, offered plaintiff $ 300 in full payment of said loss, and no more, which offer the plaintiff refused to accept in full payment of said loss, and thereupon the said adjusters agreed with the plaintiff on the loss on part of the goods, to wit, those articles which had been totally destroyed, agreeing that the loss on said goods was $ 661; that said adjusters refused to agree with plaintiff on any other class of goods injured by said fire, and, under pretense of desiring an appraisal of the same, demanded of the plaintiff that the remainder be appraised under the terms of the policy, whereupon the plaintiff, as provided by the insurance contract, named David Juday, a disinterested and competent appraiser, and the defendant named T. J. Boyd, and it was agreed that these appraisers so appointed should proceed at once to appraise said goods, and to commence the same on January 19, 1903; that this plaintiff, by telegram and at great expense to himself, procured the attendance of said Juday on said date, retained him in said city of Bloomington, awaiting the action of defendant, for six days, at an expense of $ 30 per day, in addition to the sum of $ 25 for railroad charges; that as soon as defendant procured the agreement to enter into said appraisal, it and its adjusters commenced a systematic course of evasion, deception and neglect towards the plaintiff, with the intention of coercing him, if possible, to accept the $ 300 in full payment of defendant's liability; that defendant did not intend to complete said appraisal, but to put the plaintiff to all possible expense in forcing him to keep his goods in a badly damaged condition, denying him the right to sell or dispose of them, and postponing said appraisal from date to date, in this: that it first falsely claimed that its appraiser T. J. Boyd, who had been appointed by it, could not attend, and that it would procure a substitute for him, but has ever since refused to do so; that during the next week the goods were wasting, and the plaintiff was paying $ 40 a month rental for the room they were in, without selling or disposing of them; that his appraiser, Juday, was waiting from day to day, at heavy expense to plaintiff; that the defendant still continued evading the appraisal of said goods, refusing to communicate with plaintiff or come to the place of the fire; that on January 28, 1903, the plaintiff sent a telegram to one of the defendant's adjusters at Indianapolis, Indiana, in the words following, to wit: "Our appraiser here since Sunday, at heavy expense. When will yours be here? Answer."

Plaintiff further alleges that the defendant's adjuster received said message on the day it was sent, but wilfully, and for the unjust purpose of coercing the plaintiff to accept said sum of $ 300, and with no intention of completing said appraisal, refused, and has ever since refused, to answer said message, or to give the plaintiff any reason therefor well knowing all the while that such delay was causing the plaintiff much trouble and expense, and that the plaintiff was losing money every day; that the plaintiff was led to believe and did believe that said appraisal had been abandoned and waived by the defendant, and, to save himself from further loss by disposing of the goods, he, on January 30, 1903, commenced a sale of said goods for whatever amount each article might bring, but, before doing so, he caused said goods to be appraised by said Juday, who selected Moses Kahn, and the two, being disinterested and competent, after being sworn according to law, appraised the loss on said goods at the sum of 11,364.43; that at the time of the fire his goods so destroyed were worth $ 12,080, and the total amount of insurance held by the plaintiff in defendant's and seven other companies was $ 9,500, the latter amount being nearly $ 2,500 less than their cash value; that the goods were in a frozen condition, foul from smoke, decaying, and losing their color, and so depreciating in value that unless disposed of plaintiff would be compelled to lose the uninsured portion of said goods; that these facts were all well known to this defendant and the adjusting agent, and they also knew that if plaintiff saved anything from the part uninsured ...