The Winnesheik Ins. Co. v. Schueller

• Citation: 1871 WL 8173,60 Ill. 465
• Parties: THE WINNESHEIK INSURANCE COMPANYv.REGINA SCHUELLER.
• Decision Date: 30 September 1871
• Court: Supreme Court of Illinois

60 Ill. 465

1871 WL 8173 (Ill.)

THE WINNESHEIK INSURANCE COMPANY

v.REGINA SCHUELLER.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Stephenson county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. J. M. BAILEY and Mr. J. I. NEFF, for the appellant.

Mr. U. D. MEACHAM, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

Numerous errors have been assigned for a reversal of this judgment. It is objected that there is a material variance between the declaration and the proofs.

Every material averment in the declaration must be proved, to entitle a plaintiff to recovery.

One of the conditions of the policy required proof of loss within thirty days after its occurrence.

The declaration avers that, within the time a schedule of the property, with affidavit thereto attached, was delivered by appellee, in person, to the secretary of the company, and that the company then waived any further proofs of the loss, and all conditions in the policy requiring appraisement.

The account of the loss thus delivered was not formally correct. There were omissions of some of the requirements in the condition of the policy. The schedule, however, had a description of the dwelling house and saloon, and a long list of the furniture, etc., burned, and was sworn to before a magistrate.

Were these omissions waived by the acts of the agents of appellant?

It was in proof that, when the secretary was first notified of the loss, he gave to appellee a blank on which to make her proofs of loss. This was filled up and returned to him. He examined it and made no objection to it, except that a few articles were not covered by the policy, and erased them. He retained the paper and did not require any further proof, or the performance of any other act.

During the thirty days, appellee visited the office of the company on different occasions after she had delivered her proof of loss, and no additional requirement was made, and no objection preferred.

But it is insisted that the personal examination of appellee, after the expiration of the thirty days from the fire, was a part of the proof of loss, and that the waiver on the part of the company was only as to information not furnished by the personal examination in connection with the written proof. The personal examination made by the officers of the company, constituted no part of the proof required on the part of the assured by the condition. It requires that the assured shall make out a written account of the loss within thirty days thereafter and deliver it at the office of the company. This is a duty incumbent upon the assured, which must be performed unless waived. The personal examination is entirely optional with any officer of the company. The assured must submit to it, but can not enforce it. If the corporation desired this personal examination in aid, or as explanatory, of the proofs submitted by the assured, it should have insisted upon it within the thirty days. It can not be permitted to postpone such examination for the purpose of involving the assured in difficulties and entrapping her into a violation of the condition of the policy.

As to the acts of the agents of the company which conduced to waive its rights, the evidence is entirely satisfactory. We are clearly of opinion that it had waived any omissions or irregularities in the proof of loss delivered, and that there is no variance.

Error is assigned upon the refusal of the court to give the twelfth and fourteenth instructions asked by appellant. They involve the question already discussed. They are based upon the idea that the personal examination of the assured, after the expiration of thirty days from the loss, forms a part of the proof referred to in the condition of the policy which must be made by the assured. As we have already said, they are wholly distinct. One must be done, the other may be done. Even if the personal examination at any time might constitute proof of loss, it could never when made after the lapse of the thirty days. The opposite construction would enable these corporations to delay the examination and thus compel a forfeiture of the policy.

According to the view we have heretofore taken of the evidence, there is no force in the objection that the suit was prematurely brought. According to the terms of the policy, the amount of the loss or damage was not payable for ninety days after due notice and proof. The schedule of the property which was made, and which we hold to have been sufficient according to the evidence, was delivered to the secretary of the company on the 11th day of May, 1870. The suit was commenced on the 23d of August following, making one hundred and four days after the proof of loss.

It was not error to refuse the thirteenth instruction in behalf of appellant. It is founded upon the assumption, which is held to be erroneous, that the personal examination of the assured was a necessary part of the proof of loss.

The first instruction given for appellee was clearly right. It informed the jury that the personal examination was no part of the preliminary proofs of loss. This is the true construction of the condition in the policy. The averments in the declaration did not impose the proof of such examination upon appellee. When she had proved the delivery of the schedule and the acts of waiver, she had made a prima facie case as to the proof of loss. She was not bound, as assumed by counsel, to prove the personal examination and all the acts of the company by its officers, in order to constitute a waiver. She need only show acts which were sufficient to convince the jury that the company had waived any irregularity in the proof of loss. When this was done the law did not burden her with the ridiculous labor of accumulating testimony.

The last clause of the instruction is not objectionable. The refusal to submit to the examination was solely a matter of defense. The language clearly indicates this view. It is susceptible of no other construction.

The language of the condition is: “The assured shall forthwith give notice of any loss to the secretary of the company, and within thirty days after such loss shall deliver, at the office of the company, etc., a particular account of such loss;” and then proceeds with particular specifications. The condition then contains the following: “And the assured shall, if required, submit to an examination, etc.”

The requisition for the examination must proceed from the company. The assured must yield to it only upon demand. Upon demand, followed by submission or refusal, then the company may prove the facts. The effect of refusal is not involved in this case, as the assured did not refuse. The examination was had after the expiration of the time in which to perfect proofs of loss, and formed a part of the evidence introduced by the company. It was used, as avowed, merely to show the fact of examination. For the purpose offered, it was wholly immaterial. It might have been used in rebuttal with a view of contradiction, but taken at the time it was, it could not be offered as any part of the preliminary proofs; nor could the bare fact of examination constitute any defense under the...