Wicktorwitz v. Farmers' Ins. Co.

• Decision Date: 07 December 1897
• Citation: 51 P. 75,31 Or. 569
• Parties: WICKTORWITZ et al. v. FARMERS' INS. CO.
• Court: Oregon Supreme Court

51 P. 75

31 Or. 569

WICKTORWITZ et al. v. FARMERS' INS. CO.

Supreme Court of Oregon

December 7, 1897

Appeal from circuit court, Linn county; George H. Burnett, Judge.

Action by S. Wicktorwitz & Co. against the Farmers' &amp Merchants' Insurance Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

This is an action on an insurance policy covering loss or damage by fire to the amount of $1,000 on certain personal property belonging to the plaintiffs, while situated at No. 48 Blecker street, New York. The complaint is in the usual form alleging the issuance of the policy, the destruction of the property by fire on December 31, 1889, its value, notice to the defendant of the loss and damage, and the submission of due proofs thereof within the time required by the policy. The answer denies all the allegations of the complaint except the incorporation of the defendant, and, for a further and separate defense, in substance alleges that on May 4 1889, in consideration of the sum of $15 to be paid as therein provided, the defendant company agreed to, and did, issue to the plaintiffs' assignor the policy of insurance mentioned and referred to in the complaint; that one of the conditions thereof is that "if, at the time of the making of this policy, the money consideration herein named be not actually paid in lawful money to the company at its office in Albany, Or., which payment shall be evidenced only by a receipted bill of the company over the signature of the president, accompanying said policy, payment thereof shall then be made within 30 days from the date of the issue of policy by bank check or draft direct to company, payable to order of the president,--otherwise this policy shall be void"; that the premium was not paid at the time of issuing the policy, or at all; and that, by reason thereof, the policy is void, and of no force or effect whatever. It is also alleged that, by the terms of the policy, it is provided that "when a fire has occurred, injuring the property herein described, the assured shall use all practicable means to save and protect the same, and shall give immediate notice of the loss in writing to this company, at its office in Albany, Or. When personal property is damaged, the assured shall forthwith cause it to be put in order, assorting and arranging the various articles according to their kinds, separating the damaged from the undamaged, and shall cause an inventory of the whole thereof, including property claimed to be totally destroyed, to be made and furnished this company, naming the quantity, quality, and cost of each article"; that the plaintiffs utterly and entirely failed and neglected to give immediate notice of the alleged loss, in writing, to the company, at its office in Albany, Or., and have failed, refused, and neglected to give to the defendant any notice whatever, in writing or otherwise, of the alleged loss by fire, either at its office in Albany, Or., or elsewhere, and have utterly failed and refused to make or cause to be made any inventory of such personal property alleged to have been destroyed by fire, including that alleged to have been totally destroyed, naming the quantity, quality, and cost of such articles, or to furnish the same at any time to the defendant. The reply denies the allegations of the answer, and alleges that the premium was paid to the defendant through its general agent in the city of New York, and that it received and applied the same to its own use, less the agent's commission, and thereby waived the right to have it paid at its home office by bank check or draft payable to the order of its president; and that the plaintiffs duly gave notice of their loss to the defendant, and also furnished due proof thereof, as alleged in the plaintiffs' complaint herein; and that defendant received the same, and never made any objection thereto, and never demanded of plaintiffs any other or further proof of loss, or an inventory concerning said property, at any time; and that defendant thereby waived its right to, and should be estopped from, setting up such defense at the trial of this cause. Upon the issues joined, a verdict and judgment were rendered in favor of plaintiffs. From this judgment the defendant appeals, alleging error in the admission of testimony, and in overruling its motion for a nonsuit.

J.K. Weatherford, for appellant.

O.H. Irvine, for respondents.

BEAN J. (after stating the facts).

The contention for the...