W. Home Ins. Co. v. Richardson

• Decision Date: 03 April 1894
• Parties: WESTERN HOME INS. CO. v. RICHARDSON.
• Court: Nebraska Supreme Court

40 Neb. 1

58 N.W. 597

WESTERN HOME INS. CO.

v.RICHARDSON.

Supreme Court of Nebraska.

April 3, 1894.

Syllabus by the Court.

1. Ordinarily, in an action on an insurance policy containing a provision to the effect that the insured shall furnish to the company written proof of his loss within 60 days after the fire, the plaintiff, in order to recover, must establish on the trial that such proof was duly furnished, or that the same was waived by the defendant.

2. Where the answer filed to the petition puts in issue the execution and delivery of the policy, the defendant thereby waives the terms of the policy relating to the preliminary proof of loss.

3. In case the preliminary proof of loss submitted to the company is unsatisfactory, it should return the same to the insured within a reasonable time, stating in what respect it is considered defective; and if it fails to do so, but rejects such proof on the ground that the same was not furnished in proper time, it cannot afterwards avail itself of the insufficiency of such preliminary proof.

4. The omission of the plaintiff to introduce in evidence a paper or document essential to his case is cured by the defendant afterwards putting in evidence such paper or document.

5. Where an insurance company denies the making of the policy, and all liability thereunder, and absolutely refuses to pay the loss, the right of action of the insured immediately accrues, although the policy contains a clause giving the company an option either to pay the loss or replace the property damaged within a specified time.

6. An agent of an insurance company, duly authorized to take and approve risks and to insure, issued a policy of insurance, extending credit for the premium, although the policy acknowledged the payment thereof. Prior to any loss, the full amount of such premium was tendered by the insured to such agent, but the money was not received, owing to the fact that the latter was about to enter a railroad car, and would not accept the money. Before the agent returned home the property was destroyed by fire. Afterwards, but prior to instituting suit on the policy, the amount of premium was paid to the company, and the same was retained by it, with full knowledge of all the facts. Held, that such payment related back to the time the tender was made to the company's agent, and that the company could not avail itself of the condition contained in the policy that “this company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor shall be actually paid,” to prevent a recovery.

7. In an action to recover for a loss under a policy it is competent for the insured, who was acquainted with the value of the property destroyed at the time of the fire, to testify as to such value.

8. It is not proper practice, to permit a witness to answer a question without objection, and then move to have the testimony excluded.

9. Objections to the rulings of the trial court on the admission and exclusion of testimony examined and considered, and said objections overruled.

Error to district court, Butler county; Wheeler, Judge.

Action on a policy of insurance by E. B. Richardson, assignee of C. E. McCarty & Co., against the Western Home Insurance Company. Plaintiff had judgment, and defendant brings error. Affirmed.H. W. Chase and W. E. Bauer, for plaintiff in error.

Matt Miller, for defendant in error.

NORVAL, C. J.

This is an action brought by E. B. Richardson, as assignee of C. E. McCarty & Co., upon a policy of fire insurance on a stock of general merchandise. From a judgment in favor of the plaintiff below for the full amount covered by the policy the defendant brings the case to this court for review.

At the close of the plaintiff's testimony the defendant requested the court to direct the jury to return a verdict in its favor, for the reason that no evidence had been introduced tending to show that the plaintiff or his assignors had furnished to the company the preliminary proof of loss, as required by the provisions of the policy. The court refused to so instruct the jury, to which an exception was taken, and the defendant introduced testimony in support of the defenses set up in the answer. This ruling is the first error assigned. The policy contained the usual stipulation that the assured, in case of loss or damage by fire, should, “within sixty days, render an account of the loss or damage, signed and sworn to, stating how the fire originated, giving copies of the written portions of the policy thereon, also the actual cash value and ownership of the property, and the occupation of the premises, if any; and, whenever required, the assured, his, her, or their agents or servants, wherever and as often as required, shall submit to examinations under oath by any person designated by the company, and apart from all other persons except the attesting magistrate or notary, and subscribe thereto when reduced to writing, and produce all books of account, bills, and other vouchers (or copies thereof, if originals are lost) at the office of the company, or at such other place as the company may designate, and permit copies and extracts to be made; * * * and shall, if required, produce the certificate of a magistrate or notary public nearest to the place of fire, stating that he has investigated the circumstances of the fire, and believes that the owner has without fraud sustained loss to the amount claimed.” The general rule is, and we have so held, that in an action upon a policy of insurance containing provisions similar to those in the case before us it is necessary for the plaintiff to prove upon the trial that proof of loss was made, or that the same was waived by the insurer. Insurance Co. v. Fairbank, 32 Neb. 750, 49 N. W. 711. It is true the bill of exceptions discloses that the plaintiff failed to prove that proof of loss was furnished the insurer, but this omission will not defeat a recovery, since the answer filed by the defendant put in issue the execution and delivery of the policy, and the plaintiff was required to prove the making of the contract of insurance. Besides, the defendant insisted upon the trial that the policy was not in force when the fire occurred. These facts constituted a waiver of the terms of the policy relating to the preliminary proof of loss. Insurance Co. v. Bachelder, 32 Neb. 490, 49 N. W. 217. Again, the defendant, when it came to make out its case, established that such proof of loss was furnished by the plaintiff's assignors, and actually introduced the original statement of loss in evidence, thereby supplying the omission in plaintiff's testimony, and curing the error, if any, in the failure of the court to direct a verdict for the defendant. It is said it should not have that effect, because the preliminary proof of loss was not delivered to the company within 60 days after the loss. The fire occurred on the night of October 26, 1890, and it is undisputed that notice and proof of loss were sent to defendant, at Sioux City, Iowa, by registered mail, from Ulysses, Neb., on December 23d following. There was evidence introduced tending to prove that they were not received by the company until December 26th, or 61 days after the loss occurred. However that may be, they were delivered by McCarty & Co. to the postmaster at Ulysses, postage thereon prepaid, in ample time to have been transmitted by the usual and ordinary course of mail to Sioux City, before the expiration of the 60 days, and they had a right to assume that the same would reach the place of destination in time. They were either miscarried in the mails, or the defendant did not call for or receive them as soon as they reached Sioux City. So far as the evidence shows, they may have laid in the post office at that place a day or more before their delivery to the defendant. The jury were justified in finding that proof of loss was made in due time.

It was also urged that the preliminary proof of loss does not comply with the requirements of the policy. This objection is unavailing, as the proof furnished was never returned to McCarty & Co. or their assignee for correction, but was retained by the defendant, and by it produced on the trial. True, the company, on December 27th, in acknowledging the receipt of the paper, stated that it did not comply with the terms of the policy, but the only objection pointed out in the letter was that the same was not delivered within 60 days. If the proof was defective in form or substance, and the company intended to contest its liability for that reason, it should have been returned to the insured, with a statement of the particulars in which the same was considered defective, in order that the defect might be corrected. Having failed so to do, the company will not...