Teasdale v. City of New York Ins. Company

• Decision Date: 11 February 1914
• Citation: 145 N.W. 284,163 Iowa 596
• Parties: MATHEW TEASDALE, Appellee, v. THE CITY OF NEW YORK INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

145 N.W. 284

163 Iowa 596

MATHEW TEASDALE, Appellee, v. THE CITY OF NEW YORK INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 11, 1914

Appeal from Monroe District Court.--HON. D. M. ANDERSON, Judge.

ACTION at law upon a policy of fire insurance. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

John F Abegglen, for appellant.

John R Price, for appellee.

WEAVER J. LADD, C. J., EVANS and PRESTON, JJ., concur.

OPINION

WEAVER, J.

On October 26, 1911, the defendant insurance company issued its policy to the plaintiff, indemnifying him against loss or damage by fire for a period of one year upon a certain stock of goods and store fixtures in a building situated in the village of Griffinville, Monroe county, Iowa. Thereafter, on November 11, 1911, and while said policy was in full force and effect, the property so insured was destroyed by fire. Among other stipulations of the policy, it was provided that in case of loss the insured should within 60 days give to the company written notice thereof, accompanied by affidavit as to how the loss occurred and the extent thereof. This action on said policy was begun August 30, 1912. The petition as finally amended alleges the issuance of the policy and the fact of the loss of the insured property by fire and that written notice of such loss was promptly given to the company. It also pleads certain correspondence had with the company and its agents and certain conduct and representations on their part as a waiver of the requirement that such notice be accompanied by an affidavit or other proof of loss, and, averring the failure of the defendant to make payment of said loss, demands judgment for recovery of his damages. Answering this claim, defendant admits the issuance of the policy, and that it received notice of the loss, but denies that it ever waived the requirement of the policy for an affidavit or sworn proof of such loss. It further pleads affirmatively the requirement of the policy for proofs of loss within 60 days after the fire, and alleges that such proofs were not furnished until long after such period had expired, for which reason plaintiff neither acquired nor has any right of action upon said policy.

The evidence tends to show that the policy was issued to plaintiff by one Sloan, then acting as defendant's agent, and that immediately after the fire plaintiff went to said agent, informed him of the loss, and asked him to report it to the company, which he promised to do and did do, sending the notice upon blanks prepared by the company for such purpose, one being sent to the home office and one to its special agent, George W. Tones, having more immediate charge of the business in that territory. The notice clearly specified the number of the policy, its date, the name of the assured, the location of the property, the kind of property, the amount of insurance, the extent of the loss, and that the origin of the fire was unknown. No affidavit accompanied it. Receipt of the notice was acknowledged by both Tones and the home office. Tones visited the local agent once or twice after the notice of loss. Sloan's testimony is to the effect that Tones promised to return and meet the plaintiff with a view to adjusting or settling his claim and named a day for that purpose. This appointment was reported to plaintiff, who appeared at the agent's office at the time so fixed, but Tones did not appear. Referring to this same loss, Tones wrote Sloan under the date of November 20, 1911, as follows:

Your favor of the 15th inst. came to my attention this morning and I see that the fire referred to occurred on the 11th which was quite awhile ago. I had already made plans, depending on a telegram, to meet a man in Davenport on Wednesday morning and I received his telegram that he could be there. Therefore I will be unable to reach you on this matter until the latter part of this week when I shall be pleased to see you.

Yours truly, Geo. W. Tones.

Ten days later, apologizing for his nonappearance, Tones wrote again:

I suppose you think I am very careful of my engagements, but learned that two other adjusters, also interested in the same fires expected to take the matter up the latter part of this week, so have delayed it and because further I was called on another matter. So will let you know later just when to expect us. Possibly this week yet.

Yours, Geo. W. Tones.

All these matters were reported to plaintiff, who relied thereon, and took no further steps in the matter for some time, except to call frequently on the local agent and urge action upon his claim. Early in January, 1912, plaintiff consulted counsel, who wrote directly to the home office calling attention to the loss, to the fact that Tones had come to Griffinville with reference to the matter, and had promised to return for its adjustment, but had failed to do so, and asked that immediate attention be given to the claim. This letter the company answered as follows under date of January 13, 1912: "We are in receipt of your favor of the 8th inst. regarding claim of Mathew Teasdale under policies 5090 and 5095, Albia, Iowa agency and in reply beg to state that we are today writing our special agent Mr. Geo. W. Tones at Des Moines, Iowa regarding the matter, and he will doubtless take the same up with you." Tones did not again "take up" the matter with counsel or with plaintiff, but on February 5, 1912, responding to an inquiry from the local agency, he wrote: "Gentlemen: Your favor regarding Mathew Teasdale, received. As you know, we have done nothing from the first regarding this loss as to settlement, and do not expect to. There is no question, it appears, in the mind of Mr. Teasdale but that this fire was of incendiary origin, and nothing has been done to clear the matter up, so that as stated already we have taken no action whatever regarding its settlement, and do not intend to." This is substantially the entire record. The insurance is not denied and a total loss is shown without dispute. There is no issue or claim of any default, omission, or misconduct of the plaintiff, preceding the loss, by which his insurance was forfeited. The sole defense is based upon his failure to present formal proofs of such loss in strict compliance to a condition of the policy.

Assuming for the present that such defense may be technically good and perfect, if the default be admitted and no fact be shown to avoid its effect, it is a defense which does not appeal to the favor of courts, and a forfeiture so claimed will not be enforced if there be any reasonable ground on which to find that the condition has been waived. It is to be remarked in the first place that it is open to grave doubt whether the policy makes the failure of the insured to furnish formal proofs in strict accordance with its terms operate as a forfeiture of the insurance. There are several clauses of the contract which specify in clear terms conditions, a violation of which shall render a policy "void," and other specific conditions upon which the company "shall not be liable for loss," but none of these make reference to proofs of loss. The clause pleaded and relied upon, which is separately stated and numbered, makes it the duty of the insured, when loss occurs,...