Rokes v. Amazon Ins. Co. of Cincinnati

• Citation: 51 Md. 512
• Parties: EMERSON ROKES v. THE AMAZON INSURANCE COMPANY OF CINCINNATI.
• Decision Date: 18 June 1879
• Court: Court of Appeals of Maryland

51 Md. 512

EMERSON ROKES v. THE AMAZON INSURANCE COMPANY OF CINCINNATI.

Court of Appeals of Maryland

June 18, 1879

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court. The sixth clause of the policy of fire insurance therein mentioned, provided as follows:

In case of loss, the assured shall give immediate notice thereof in writing, and shall immediately thereafter render to the company a particular account of said loss in writing under oath, stating the time, origin and circumstances of the fire the occupancy of the building insured or containing the property insured, other insurance, if any, and copy of the written portion of this policy, and copies of all other policies, the whole value and ownership of the property immediately preceding the loss, and the amount of loss or damage, and shall produce the certificate under the seal of a Magistrate or Notary Public, nearest the place of the fire and not concerned in the loss or related to the assured stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured and verily believes that the assured has, without fraud sustained loss on the property insured to the amount claimed.

Exception.--At the trial the plaintiff offered the following prayer:

If the jury believe from the evidence that Frederick Fickey was appointed the agent of the defendant, by its authority, to adjust the loss sustained by the plaintiff, and to receive the preliminary proofs of loss, and did so receive the same, and report them to the defendant, and that the defendant notified said Fickey that the proof was not satisfactory, and that subsequently the said Fickey so notified the defendant by the letter of August 8, 1876, offered in evidence, and that afterwards, at the instance of said Fickey, the plaintiff attempted to amend the same, and did so amend them, and return to said Fickey, and the said Fickey promised to send the same to said defendant, and give the reply of the said company to the same; and they shall find that the said Fickey did so send the said amended preliminary proof to the said defendant, and receive a reply, and notified the same to the plaintiff by letter, dated April 5th, 1877, given in evidence, stating no objection to the same, except the absence of detailed schedules, that then from all the evidence in the same, they are at liberty to find that the said Fickey was the accredited agent of the defendant to communicate with the plaintiff on the subject, and they may find a waiver by the defendant of all objections to the preliminary proof, except as to that stated in said letter of April 5th, 1877, and from all the evidence, including said letter of April 5th, 1877, they are at liberty to find that the company gave further time to the plaintiff to supplement his preliminary proof in the respects of the objection made in the said letter of April 5th, 1877; and if they shall further find that the plaintiff did so amend his preliminary proof, and serve the same upon the company at its office in Cincinnati, more than sixty days before this suit was brought, and the said company made no objection to the same, and retained during all this time all the preliminary proof aforesaid, then they may find the preliminary proof is not liable to objection on account of not being furnished immediately.

The defendant offered the following prayer:

That to entitle the plaintiff to recover in this action, the jury must find from the evidence that the plaintiff, within a reasonable time after his alleged loss, rendered to the company such a particular account of his said loss as is required by the sixth condition of the policy sued on unless they shall further find that the rendering of such particular account as is required by said policy was waived by the defendant; that there is no evidence of the rendering of such an account of said loss as is required by said policy, within a reasonable time after said loss, and no evidence to account for delay on the part of the plaintiff in rendering such account, and there is no evidence that the rendering of such an account was waived by the defendant, and the verdict of the jury must be for the defendant.

The Court, (DOBBIN, J.,) rejected the prayer of the plaintiff, but granted the prayer of the defendant; the plaintiff excepted and the verdict and judgment being for the defendant, the plaintiff appealed.

The cause was argued before BARTOL, C.J., BRENT, GRASON and ROBINSON, J.

John H. Handy, for the appellant.

The Court below erred in refusing to instruct the jury that the facts stated in the plaintiff's prayer afforded evidence of a waiver.

Fickey was such an agent as could waive the provision as to the time. He had the apparent power to act in the premises, and there was not only nothing to put the insured on his guard, but everything to lull him into security as to Fickey's powers. He had the right to rely on these apparent powers. Wood on Ins., 846, sec. 500, 648, secs. 395, 396, and note 1.

The scope and extent of his powers must be determined by his acts, and the recognition thereof by his principal.

Scope of apparent authority may be relied on by insured. Wood on Ins., 656, 657, secs. 397, 398.

"If an insurance company, on notice of loss, refer the assured to their resident agent for settlement, and instruct the agent to procure a statement of the loss, he is thereby invested with full authority to receive and extend the time for furnishing it; and if given within the time required by the agent, that is sufficient, notwithstanding a condition of the policy requires it to be made at an earlier day. It would be a fraud on the insured, if having done what the agent required of him, the company should set up the defence of non-compliance with a condition which the agent had waived, and after it had become too late to perform it." Flanders on Fire Ins., 192, sec. 7; Lycoming Co. Mut. Ins. Co. vs. Schollenberger, 8 Wright, (Pa.) 259; Flanders on Fire Ins., 570, 571, 600, 601, and 2, note 3; Works vs. Farmers' M. F. Ins. Co., 57 Maine, 281, note 2; Franklin F. Ins. Co. vs. Coates, 14 Md., 286; Ide vs. Ph nix Ins. Co., 2 Bissell, 333; Grant vs. Lexington Ins. Co., 5 Indiana, 23; Coursin vs. Pa. Ins. Co., 10 Wright, 323; Ames vs. N.Y. Ins. Co., 14 N. Y., 253; Security Ins. Co. vs. Fay, 22 Mich., 467; Wood on Ins., 728, 729, 833, sec. 496; May on Ins., secs. 126, 127, 144, 464, 465; Union Mutual Ins. Co. vs. Wilkinson, 13 Wall., 222; Baker vs. Cottie, 45 Maine, 236; Curtis vs. Home Ins. Co., 1 Biss., 485; Owen vs. Farmers' Joint Stock Ins. Co., 57 Barb., 518; Dohn vs. Farmers' Joint Stock Ins. Co., 5 Lan., 275; Jones vs. Mutual Fire Ins. Co., 36 N. J., 29; Insurance Co. of N. A. vs. McDowell, 50 Ill., 120; 8 Wright, 259; 57 Maine, 281; Flanders on Fire Ins., pages 192, 570, 571, 600, 601, 602, and notes.

There was evidence that the defendant waived the condition in question: By the acts of its agent, even if those acts were not under instruction. By the company itself adopting and ratifying the agent's acts. By the acts of the company and its messages communicated to the insured by its agent.

The evidence of the waiver consists: In the acts of the agent and the company in inviting further proof. This was repeated several times and as late as the interview of Handy with Fickey.

It consists in the entire absence of any objection made on that ground when the amended proof of March 5th was acknowledged by the company on April 5th. The specific objections then made, in the letter of April 5th, exclude and waive all other objections that might then have been made. Wood on Fire Ins., 715, sec. 417, 716, 717, 727; May on Ins., sec. 468; Charleston Ins. Co. vs. New, 2 McMullen, (S. C.,) 267; Lewis vs. Monmouth Mutual Fire Ins. Co., 25 Maine, 492; Post vs. Ætna Ins. Co., 43 Barb., (N. Y.,) 351; Killips vs. Putnam F. Ins. Co., 28 Wis., 472; Heath vs. Franklin Ins. Co., 1 Cush., (Mass.,) 257; Flanders on Fire Ins., 597; Great Western Ins. Co. vs. Strader, 26 Ill., 365; Ins. Co. of North America vs. Hope, 58 Ill., 75; Herron vs. Penn. M. & F. Ins. Co., 29 Ill., 225; Taylor vs. Merchants' Fire Ins. Co., 9 Howard, 390; Noyes vs. Washington County Mutual Insurance Company, 30 Vermont, 689; Gans vs. St. Paul F. & M. Ins. Co., 43 Wis., 109.

It amounts to a waiver when the company prevents suit by holding out hope of settlement. Flanders on Fire Insurance, 600, note 2, and cases there cited.

The local agent has the power to waive the furnishing of proof within a specified time. Flanders on Fire Insurance, 600, and note 2; Ide vs. Ph nix Insurance Company, 2 Bissell, 333; Grant vs. Lexington Insurance Co., 5 Ind., 23; Coursin vs. P. A. Ins. Co., 10 Wright, 323; Curtis vs. Home Ins. Co., 1 Biss., 485; Ames vs. New York Insurance Company, 14 N. Y., 253.

"It is well settled that the officers and agents of the insurance company may in any particular case waive or modify the stipulations of the policy as to the preliminary proof of loss, or the mode and form in which liability of the company shall be ascertained and made known." Flanders on Fire Insurance, 602, note 1; 105 Mass., 570; 14 Gray, 203; 12 Gray, 265; 14 Wright, 331; 42 Mo., 456; 26 Iowa, 9.

For these stipulations as to the preliminary proof are not of the essence of the contract. Pruit vs. Citizens' Mutual Fire Insurance Company, 3 Allen, 602; Maryland Insurance Company vs. Bathurst, 5 G. & J., 159; Franklin Fire Insurance Company of Chicago vs. Chicago Insurance Co., 36 Md., 102.

Thomas J. Morris and Edward Otis Hinkley, for the appellee.

1. Preliminary proofs of loss when required by the policy must be furnished in manner and form as required before the insured can recover....