Ruthven v. American Fire Ins. Co.

• Decision Date: 22 October 1894
• Citation: 60 N.W. 663,92 Iowa 316
• Parties: RUTHVEN BROTHERS v. AMERICAN FIRE INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

60 N.W. 663

92 Iowa 316

RUTHVEN BROTHERS v. AMERICAN FIRE INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 22, 1894

Appeal from Palo Alto District Court.--HON. GEORGE H. CARR, Judge.

ACTION at law upon a policy of fire insurance. Trial to a jury verdict and judgment for plaintiffs, and defendant appeals.

Reversed.

R. W Barger and McCarty & Linderman for appellant.

B. E Kelly & Soper, Allen and Morling for appellees.

OPINION

DEEMER, J.

On the thirtieth day of April, 1891, the defendant issued to plaintiffs its policy of assurance, insuring them against loss or damage by fire for the period of one year upon an ice house situated in Palo Alto county. On the fifteenth day of October, and during the life of the policy, the building was totally destroyed by fire. The company having failed and neglected to pay the loss, this action was brought to recover the amount of the policy. Upon the trial of the case in the court below it was conceded that the property was destroyed by fire, and was worth more than the amount called for by the policy. It was also admitted by the plaintiffs that they did not give the preliminary notice and proof of loss required by the policy and by McClain's Code, section 1734, but they averred that the defendant, through its officers and agents, had waived the same. At the conclusion of the testimony for plaintiffs, defendant moved for a verdict, on the ground that no such waiver had been proved. The court overruled this motion, and this ruling is assigned as error. Ingersoll, Howell & Company, of Des Moines, were the local agents of the defendant, who issued the policy in suit. They had the power "to receive proposals for insurance against loss or damage by fire, to name rates, receive premiums, and to countersign, issue, renew, and consent to the transfer of policies of insurance, signed by the president and secretary of the company, subject to the regulations of the company and the instructions of its officers." The evidence also shows that they sometimes received notices and proofs of loss, and forwarded them to the defendant company. Shortly after the fire, and on the same day, one F. H. Giddings, through whom the policy of insurance was procured, at the request of one of the plaintiffs, sent to Ingersoll, Howell & Company the following telegram:

"Ingersoll, Howell & Co.:

"Ice house numbers 3 and 4 burned to day. Will write. F. A. GIDDINGS."

On the next day he wrote as follows:

"Ingersoll, Howell & Co., Des Moines, Iowa.

"GENTS:--The ice house numbers 1, 2, 3, and 4, burned to the ground yesterday. We have one thousand dollars insurance on number 3 and 4 in American Fire of Philadelphia, policy number 3,505. When can you have the adjuster come and look it over?

"Respectfully yours,

(Signed) "F. H. GIDDINGS."

In a few days thereafter, Giddings received a reply to these communications from Ingersoll, Howell & Company, which stated, in effect, that they had received the letter and telegram, and would have the adjuster come in a few days. On receipt of the letter and telegram from Giddings, Ingersoll, Howell & Company "mailed the usual notice of loss to the company." On the nineteenth day of October a man by the name of Werniemont, who was the adjusting agent of the Dubuque Fire & Marine Insurance Company, which was also interested in the loss, appeared upon the scene, and made estimates of the material and workmanship on the building, figured the dimensions of and located the buildings. The authorities and powers of this agent will be referred to hereafter. Nothing further being heard from the company, Giddings, at the request of plaintiffs, again wrote or telegraphed Ingersoll, Howell & Company regarding the loss, and on December 11 received the following telegram: "American interest left with the Dubuque Fire & Marine. Fill proofs, and send American's to C. E. Bliven, Manager, 218 La Salle Street, Chicago, Ill." And a few days thereafter received the following letter:

"DES MOINES, IOWA, December 11, 1891.

"F. H. Giddings, Esq., Ruthven, Iowa.

"DEAR SIR:--Your telegram received yesterday, and we have this morning telegraphed you as follows. [Then follows a copy of the telegram above set forth.] "We will say that immediately on the report of the loss last October we gave the necessary notice to the companies' managers at once. A few days after that, the special agent of the American Fire & Marine were both in Des Moines, and, it seeming unnecessary for both to go to Ruthven, the American special turned over the loss to the Dubuque Fire & Marine special, for him to settle both. We understand the American special, Mr. C. N. Miller, notified Ruthven Bros. to this effect, and also inclosed proofs of loss for them to fill out. Since that time we have paid no attention to the matter, and do not know what action has been taken by the Dubuque Fire & Marine people. We did not answer your telegram yesterday, anticipating the arrival in the city of the American special. We now suggest, if you have not already done so, that the assured make out proofs of loss, and send them by registered mail or express, to make sure that they reach the proper parties of both companies. Send proofs to C. E. Bliven, Manager, 218 La Salle Street, Chicago, Ill. As we understand, the state laws give sixty days in which to file such proofs. We do not understand, from all our conversation with the American special, that they intended to take advantage of you in any way, but it is well in all cases to take the necessary steps in matters of that kind. Do not the assured consider that the loss was due to the neglect of the Des Moines Ice Company in originating the fire, and do they expect to make any claims in court against these people for the loss sustained? In that case, it strikes us, it might be well to confer with the insurance companies interested on your loss, and join with them in making any such claim, provided you have the proofs to substantiate it. We trust you will have no trouble in getting matters settled as they should be, and do not anticipate that you will, so far as the American is concerned. We trust this is satisfactory, and to hear from you again soon.

Yours, truly,

"INGERSOLL, HOWELL & CO."

C. N. Miller is a special agent and adjuster of the defendant company, living at Des Moines. Whether he is a general adjuster, or acts as such in special cases, does not clearly appear. Immediately upon receipt of the notice of loss from Giddings, Ingersoll, Howell & Company notified Miller of the loss, and a short time thereafter Miller and Werniemont came into the office of Ingersoll, Howell & Company, and it was there arranged between them that Werniemont should go and investigate the plaintiffs' loss, and report to the defendant company. Werniemont went pursuant to their arrangement, and made the investigation before stated. Some time in January, 1892, and after the sixty days had expired for making proofs of loss, Miller himself went to Ruthven, where plaintiffs lived, and there had a conversation with the plaintiffs, in which he stated, in substance, that he did not wish to go to the site of the property; that he had seen Werniemont before he came up, and had a talk with him after he went back, and that he was satisfied that it was all straight and right, and ought to be paid, but that plaintiffs ought to commence an action against the ice company for their negligence in destroying the property, and if they (plaintiffs) fought them they would take care of us (plaintiffs); that Werniemont had come to investigate the liability of the ice company when he was first there. Miller did not agree to pay the loss at any time, however, and did not agree to do anything until plaintiffs had tried to recover from the ice company.

The foregoing facts are established by plaintiff's testimony and are relied upon to prove a waiver of the provisions of the policy requiring notice and a statement of the loss within sixty days from the date of the fire, and of the statute requiring practically the same thing. The defendant introduced no testimony, and the question in the case is, do these facts establish a waiver? The policy required this statement of loss to be filed within sixty days after the fire, unless such time was extended in writing by the company, and provided that the statement should be signed and sworn to by the insured, and should state the time and origin of the fire, according to his best belief, the interest of the assured in the premises, etc. The statute (McClain's Code, sec. 1734) requires the assured to give notice in writing, accompanied by an affidavit stating how loss occurred, and the extent of the loss, within sixty days from the time the loss occurred. These matters were conditions precedent to a right of recovery on the policy, and, unless waived, a failure to comply with them is fatal. The policy also provided: "This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, 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. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed...