Western Home Insurance Company v. Richardson
| Decision Date | 03 April 1894 |
| Docket Number | 5661 |
| Citation | 58 N.W. 597,40 Neb. 1 |
| Parties | WESTERN HOME INSURANCE COMPANY v. E. B. RICHARDSON, ASSIGNEE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Butler county. Tried below before WHEELER, J.
AFFIRMED.
H. W Chase and W. E. Bauer, for plaintiff in error.
Matt Miller, contra.
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 all policies thereon, also the actual cash value and ownership of the property, and the occupation of the premises, and incumbrance, 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 thereof 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 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. (German Ins. Co. v. Fairbank, 32 Neb. 750, 49 N.W. 711.) It is true the bill of exceptions discloses that the plaintiff failed to prove 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. (Phenix Ins. 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 sixty 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, Nebraska, on December 23, following. There was evidence introduced tending to prove that they were not received by the company until December 26, or sixty-one 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 sixty 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 is 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 27, 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 sixty 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 now be heard to say that such proof was insufficient. (Union Ins. Co. v. Barwick, 36 Neb. 223, 54 N.W. 519.) This rule is well sustained by authorities elsewhere. (Firemen's Ins. Co. v. Crandall, 33 Ala. 9; Inland Ins. & Deposit Co. v. Stauffer, 33 Pa. 397; McMasters v. Westchester County Mutual Ins. Co., 25 Wend. [N.Y.] 379.) In the last case the court say: "The law is well settled, that if there be a formal defect in the preliminary proofs, which could have been supplied had an objection been made by the under-writers to payment on that ground, if they do not call for a document, for instance, or make objection on the ground of its absence or imperfection, but put their refusal upon other grounds, the production of such further preliminary proofs will be considered as waived." In the case we are considering the company rejected the proof or statement of loss on the ground that it was not delivered in proper time. Had it been objected to on account of defects, they might have been remedied.
Another defense relied on here is that the suit was prematurely brought. The policy contained a stipulation that "the amount of loss or damage should be due and payable at the office in Sioux City, Iowa, after satisfactory proofs of the same, as required hereinafter, shall have been made by the assured under the conditions and limitations of this policy and received by the company at its office, unless the property be replaced by the company, the company reserving the option to take the whole or any part of the personal property specified, at its appraised value, or to repair or rebuild, or to replace any property burned or damaged with other of like kind or quality, within a reasonable time, on giving notice of its intention so to do within sixty days after the filing of the proof of loss." It was admitted on the trial that the action was commenced on February 18, 1891, which was less than sixty days after the preliminary proof of loss was made. It is contended that plaintiff in error, under the clause of the policy quoted, had sixty days after proof of the loss was delivered to the company in which to make its election whether it would pay or replace the property burned or damaged. It must be admitted that the policy gave the company that option, but it has waived that right by denying the execution of the contract of insurance and denying all liability thereon. There is no...
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