Sweaney & Smith Co. v. St. Paul Fire & Marine Ins. Co. of St. Paul, Minnesota
| Decision Date | 30 March 1922 |
| Court | Idaho Supreme Court |
| Parties | SWEANEY & SMITH COMPANY, a Corporation, and THE WEISER LOAN AND TRUST COMPANY, a Corporation, Respondents, v. THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY OF ST. PAUL, MINNESOTA, a Corporation, Appellant |
APPEAL AND ERROR-SUPPLEMENTAL TRANSCRIPT-JOINDER IN ERROR-INSTRUCTIONS NOT PROPERLY IN RECORD-PRAECIPE-DIMINUTION OF RECORD-FIRE INSURANCE-CONSTRUCTION OF POLICY-WATCHMAN CLAUSE-WARRANTY OR REPRESENTATION-WAIVER OF PROOF OF LOSS.
1. A so-called supplemental transcript which was not settled or allowed by the trial court as provided by C. S., sec. 6886 or at all, nor filed in the supreme court within the time prescribed by its rules, is not subject to review upon appeal.
2. A stipulation by counsel to the effect that the trial judge might settle the transcript on appeal, "no error appearing therein that either party cares to suggest," constituted a joinder in error and an admission that the transcript when so settled should be deemed a true and correct record for the purposes of the appeal. Neither party was thereafter in a position to raise the question of diminution of the record, so far as the joinder in error extended.
3. Under the provisions of C. S., secs. 6886 and 7163 instructions given and refused by the trial court, which are included in the clerk's transcript but are not certified to by the clerk or called for by the praecipe, cannot be regarded as part of the record on appeal and are not subject to review.
4. C S., secs. 7163 and 7166, do not make papers, records and files in the office of the clerk below a part of the official record on appeal unless specified by the praecipe of appellant. If the praecipe as filed fails to designate such papers, records and files, or if no praecipe be filed, the official record in the appellate court consists only of the judgment-roll and any bill of exceptions or reporter's transcript filed in the case.
5. If the appellant fails by his praecipe to require papers records and files sent up for review, it is his error, and he cannot thereafter be permitted by suggestion of diminution of the record, to bring up to the appellate court such papers, files and records.
6. After the record on appeal has been filed in the appellate court, appellant cannot be permitted to file an amended praecipe, designating therein certain papers, records or files which he failed to include in the original praecipe, since he cannot be heard to complain of his own error.
7. Under the provisions of C. S., sec. 6886, the instructions of the trial court should be incorporated in the reporter's transcript or in a bill of exceptions, settled and allowed.
8. Where a clause in an insurance policy is susceptible of more than one construction, the construction most favorable to the insured should be adopted. Contracts of insurance are to be considered in view of their general objects rather than on the basis of a strict technical interpretation.
9. Held, in the instant case, that it appears from the evidence that respondents exercised reasonable care and diligence in complying with the watchman clause of their insurance policies, and in the absence of proof that their failure to comply strictly with the provisions thereof occasioned the loss, they are entitled to the protection of said policies.
10. Where after loss by fire the adjuster for the insurance companies involved made a thorough investigation of the loss and offered to settle upon the basis of fifty per cent of the face of the policies, this constituted a waiver of proof of loss by a duly authorized agent of the companies and an acknowledgment of their liability, which justified the insured in believing that no formal proof of loss would be necessary.
APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.
Action to recover on fire insurance policy. Judgment for plaintiffs. Affirmed.
Judgment affirmed. Costs awarded to respondents.
Karl Paine and Geo. Donart, for Appellants.
Parol evidence is inadmissible to vary an insurance contract. (Northern Assur. Co. v. Grand View Building Assn., 183 U.S. 308, 22 S.Ct. 133, 46 L.Ed. 213; Penman v. St. Paul Fire & Marine Ins. Co., 216 U.S. 311, 30 S.Ct. 312, 54 L.Ed. 493; Lumber Underwriters of New York v. Rife, 237 U.S. 605, 35 S.Ct. 717, 59 L.Ed. 1140; Kentucky Vermillion Mining & Concentrating Co. v. Norwich Union Fire Ins. Soc., 146 F. 695, 77 C. C. A. 121; Messelback v. Norman, 122 N.Y. 578, 26 N.E. 34.)
(19 Cyc. 760; Frick v. Millers' Nat. Ins. Co. (Mo.), 184 S.W. 1161; Joyce on Insurance, sec. 1962; McKenzie v. Scottish Union & National Ins. Co., 112 Cal. 548, 44 P. 922; Ripley v. Aetna Ins. Co., 30 N.Y. 136, 86 Am. Dec. 362; Bond v. National Fire Ins. Co., 83 W.Va. 105, 97 S.E. 692.)
"This warranty is not satisfied by an occasional tour of inspection, but requires that the watchman should be on duty at all times so that a fire would not progress without discovery." (19 Cyc. 760; Shoshone Con. Co. v. Hamburg-Bremen Fire Ins. Co., 64 Wash. 638, 117 P. 500; Mackintosh v. Agricultural Fire Ins. Co., 150 Cal. 440, 119 Am. St. 234, 89 P. 102; Rankin v. Amazon Ins. Co., 89 Cal. 203, 23 Am. St. 460, 26 P. 872.)
The court should have instructed the jury that denial of liability by appellants on the ground of a failure to comply with necessary requirements of the policies was not a waiver of the provision requiring submission of proofs of loss, unless such denial occurred within the time fixed by the policies for making such proof. (North British & Merc. Ins. Co. v. Lucky Strike Oil & Gas Co. (Okl.), 173 P. 845.)
Ed. R. Coulter, Frank D. Ryan and L. L. Burtenshaw, for Respondents.
The supplemental transcript was not served or filed within the time prescribed by the trial judge, or any of the extensions thereof, made under the provisions of subd. 1, sec. 6886, C. S. By settling the original transcript on Feb. 10, 1920, the trial judge lost jurisdiction to settle or allow said proposed supplemental transcript. (Boise-Payette Lumber Co. v. McCarthy, 31 Idaho 305, 170 P. 920; Stine Lumber etc. Co. v. Hemenway, 32 Idaho 163, 179 P. 505; Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186 P. 923; German Fire Ins. Co. v. Zonker, 57 Ind.App. 696, 108 N.E. 160.)
Appellants are not entitled to a diminution of the record and are estopped from making application for the same and have not shown due diligence.
Assignments of error 2 to 15, inclusive, cannot be considered on appeal, for the reason that the same were not embodied in the reporter's transcript or saved by bill of exceptions. (Sec. 6886, C. S.; Minneapolis Threshing Machine Co. v. Peterson, 31 Idaho 745, 176 P. 99; King v. Seebeck, 20 Idaho 223, 118 P. 292; Crowley v. Croesus Gold & Copper Min. Co., 12 Idaho 530, 86 P. 536.)
A recognition of liability by offering to pay part of the loss, or make settlement, or denial of liability on grounds other than failure to furnish proof of loss, or a course of conduct on the part of the insurer that leads the insured to believe that formal proofs of loss will not be required, waives formal proofs of loss. (14 R. C. L. 1197, 1349, pars. 521, 522; Teasdale v. City of New York Ins. Co., 163 Iowa 596, Ann. Cas. 1916A, 591, 145 N.W. 284; Griffith v. Anchor Fire Ins. Co., 143 Iowa 88, 120 N.W. 90; Helvetia Swiss Fire Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 P. 242; Providence-Washington Ins. Co. v. Wolf, 168 Ind. 690, 120 Am. St. 395, 80 N.E. 26; Caledonian Fire Ins. Co. v. Traub, 86 Md. 86, 37 A. 782; Theriault v. California Ins. Co., 27 Idaho 476, Ann. Cas. 1917D, 818, 149 P. 719.)
The insured substantially complied with the watchman clause by having a watchman both day and night, but in any event appellants were bound by the interpretation placed on the watchman clause by agent Henke, and were estopped to deny that there was a forfeiture of the policies. (14 R. C. L. 1166, 1171, 1181, 1182 and 1188; Theriault v. California Ins. Co., supra; Kansas Mill Owners' etc. Ins. Co. v. Metcalf, 59 Kan. 383, 53 P. 68; Hanover Fire Ins. Co. v. Gustin, 40 Neb. 828, 59 N.W. 375.)
The watchman clause was a rider and not a clause in the policies, and should be construed as a representation and not a warranty. As the fire originated at the time when a watchman was on duty the appellants are liable where the loss was not attributable to the failure to keep a watchman. (Hart v. Niagara Fire Ins. Co., 9 Wash. 620, 38 P. 213, 27 L. R. A. 86; Goddard v. East Texas Fire Ins. Co., 67 Tex. 69, 60 Am. Rep. 1, 1 S.W. 906; Kansas Mill Owners' etc. Ins. Co. v. Metcalf, supra.)
This action was brought by respondents to recover from appellant the sum of $ 4,000 upon a fire insurance policy in that amount, covering a flour-mill at Midvale, owned by respondent...
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Sweaney & Smith Co. v. St. Paul Ins. Co., 35 Idaho 303 (Idaho 3/30/1922)
... ... THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY OF ST. PAUL, MINNESOTA, a Corporation, Appellant ... Supreme Court ... ...