Killips v. Putnam Fire Insurance

28 Wis. 472

• Court: Wisconsin Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

Lyof, J.

On the 24th day of November, 1866, the plaintiff paid the premium and received from the defendant, the insurance company, a policy insuring him against loss or damage' by fire to certain buildings and personal property situated in the town of New Berlin, county of Waukesha, to the amount of $1,320. On the 22d day of June, 1867, and within the life of such policy, the insured property was destroyed by fire. Immediately thereafter, and probably on the next day after the fire, the plaintiff gave the local agent of the defendant, at Wau-kesha, notice of the loss.

During the latter part of July, or early in August, of the same year, one E. B. Ames, of Minneapolis, Minn., who was a general agent of the defendant, and Mr. Heath, its local agent at Waukesha, visited the plaintiff at his residence in New Berlin, and made an examination into the origin and circumstances of the fire, and the extent of the loss. In answer to a question put to the plaintiff on the trial, as to what Ames there said to him about making out proofs of the loss, he testified as follows : “ He asked if there was a justice in the neighborhood. I told him there was, but it was some ways off; and, says be, ‘ Is it about as near to Waukesha as to the justice’s office?’ Well, I told him I would rather go to Waukesha, because the road was better, and about the same distance, and, said he, ‘ It will accommodate me to go to Waukesha, because it will be on my way home.’ So I went to Waukesha.”

Ames prepared an affidavit of the circumstances and extent of the loss, which was signed and sworn to by the plaintiff, and, by direction of Ames, Mr. Heath furnished the plaintiff with certain blanks which were required to be filled as part of the proofs of loss. These blanks were afterwards filled by Mr. Gibbs, since deceased, and soon after (probably on the 31st of August), were, together with the affidavit, sent by mail to Ames, at Minneapolis, by Messrs. Cook and Gibbs, the attorneys for the plaintiff in respect to that business. In due time Cook and Gibbs received the following letter from Ames: “ General Northwestern Agency of the Putnam Eire Insurance Co., of Hartford, Conn. Capital $500,000. Minneapolis, Minn., Sept. 24, 1867. Messrs. Cook & Gibbs: Gentlemen: I am in receipt of yours of August 31st, enclosing what purports to be proof of loss of William Killips. The proofs are quite defective in several particulars, and do not comply with the requirements of the policy. I will visit Waukesha sometime during October, when I will call on you. Eespectfully yours, E. B. Ames, General Agent.” After waiting several months, during which time the plaintiff was frequently informed by the local agent that Ames was expected at Waukesha every week, Mr. Cook sent another letter to Minneapolis relative to the business, which, although addressed to the wrong person, reached Ames, who answered it as follows: “Minneapolis, Minn., March 1st, 1868. Messrs. Cook andBennett, Waukesha: Gentlemen: On my return home, a day or two since, I found your letter here, addressed to T. C. Kendrick, the general agent of Putnam Insurance for the East, on the subject of Killips'’ loss. From reading it, I presume it was designed for me, as I am tbe general agent wbo was there last summer, and I was tbe one to whom the proof of loss was sent. In reference to proof of loss in case of Killvps, you say you used the blanks furnished by agent Heath; if they are not correct, it is the fault of the blanks, and not of yourselves. One of the main requirements of the policy, required in making out the proof of loss, has not been complied with, although the blank was there, and all that was necessary was to fill in the blank. You, as attorneys, are aware that it is no part of my duty to tell you how you shall make out your proof of loss. The policy will tell you that, and to that I refer you. Respectfully yours, E. B. Ajíes, General Agent.”

After the receipt of this letter, the plaintiff made out new proofs of loss in duplicate, one set of which was delivered to the local agent in Waukesha on the 18th day of- July, 1868, and the other was mailed to the secretary of the defendant, at Hartford, Conn., probably at about the same time. It does not appear that any objection was made by the agents or officers of the defendant, before this action was commenced, to the sufficiency of such new proofs.

This action was brought upon the policy to recover for such loss, and the summons was duly served upon the defendant, September 80th, 1868.

On the trial, in the circuit court, no instructions were asked by either party, and none were given to the jury. The plaintiff had a verdict for $1,164.19 damages. The court had overruled a motion for a nonsuit, and it caused judgment to be entered upon the verdict; from which judgment the defendant has appealed to this court.

The provisions of the contract between the parties contained in the policy of insurance, upon which the defendant relies to obtain a reversal of the judgment, are the following:

Losses “ to be paid sixty days after due notice and satisfactory proofs of the same, made by the assured, and received at the office of this company.” “In case of loss, the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating the time, origin and circumstances of the. fire, the occupancy of the building insured, or containing the property insured, other insurance, if any, and copies of all policies; the whole value and ownership of the property, and the amount of loss or damage; and shall produce the certificate under seal of a magistrate, notary public, or commissioner of deeds, nearest the place of the fire, and not concerned in the loss or related to the assured, stating that he has examined the circumstances attending the loss, knows the circumstances and character of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount claimed by the said assured. ” “ It is expressly covenanted by the parties hereto, that no suit or action against this company for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery, unless commenced within twelve months next after the loss shall have occurred, and should any suit or action be commenced against this company after the expiration of the aforesaid twelve months, the lapse of time shall be taken and admitted as conclusive evidence against the validity of such claim, any statute of limitations to the contrary notwithstanding. ’ ’

The motion for a nonsuit, before mentioned, was also predicated upon these conditions of the policy.

It is contended for the defendant, that these conditions of the contract of insurance are fatal to the plaintiff’s right to recover in this action, for three reasons:

1st- Because the plaintiff failed to give immediate notice of the loss, and make the necessary proofs thereof, as required by the policy.

2d. Because he failed to obtain the certificate of the nearest magistrate or notary public, which the policy required him to furnish.

3d. Because the action was not commenced within twelve months after the loss occurred.

Tbe first and second objections are clearly not well taken. Tbe last proofs were mailed to tbe secretary of tbe defendant, at its place of business in July, 1868, and, in tbe absence of evidence upon tbe subject, tbe presumption is that such proofs reached their destination by due course of mail. Tbe plaintiff waited more than two months before be commenced bis action, and it does not appear that any objection was made to the form or sufficiency of tbe proofs by tbe officers of the defendant. It was their duty, if they deemed tbe proofs insufficient, to notify tbe plaintiff of tbe fact within a reasonable time, or tbe defects were waived. Troy Fire Insurance Co. v. Carpenter, 4 Wis., 20; Warner v. The Peoria M. & F. Ins. Co., 14 id., 318, and cases cited.

Tbe burden of proof is with tbe defendant, to show that objection was thus made on its behalf to tbe sufficiency of tbe proofs; and there being no evidence tending to show that fact, it must be held that tbe defendant was satisfied therewith, and waived tbe objections that tbe proofs were not furnished in time, and did not contain tbe certificate of tbe proper justice of tbe peace, or notary.

But there are other answers to these objections. Tbe policy required tbe plaintiff to give immediate notice of bis loss. It does not provide expressly to whom, or in what manner it should have been given. In this it is unlike tbe case of Cornell v. The Milwaukee Mutual F. Ins. Co., 18 Wis., 387, cited on tbe argument. In that case tbe contract was, that in case of loss tbe insured should, within twenty days thereafter, give notice thereof in writing to the secretary of the company; and it was there held, that a verbal notice to tbe local agent was not a compliance with tbe contract. In tbe present case, tbe legal construction of tbe contract is, that tbe notice is to be given to tbe defendant, and that a verbal notice is sufficient. There can be no doubt that notice to tbe local agent of tbe defendant, at Waukesha, was notice to tbe defendant, and that it was given in due time. Miner v. The Phœnix Ins. Co., 27 Wis., 693, and cases there cited. So much for tbe notice.

But it seems to be claimed that the contract also required the plaintiff to render to the defendant bis proofs of loss immediately.' This, we conceive, is not a correct construction of tbe contract. The notice must be given immediately, but there is no such restriction as to the time when the proofs shall be rendered. The most that the defendant can successfully diaim is, that they should have been rendered within a reasonable-time after the loss. And if the question as to whether they were so rendered is material in this action, we must presume that the jury passed upon it and decided it in favor of the plaintiff.

It may be here remarked, that in the absence of any instructions to the jury, the same force and effect is to be given to the verdict as would be given to it had the court instructed them, and instructed them correctly, on the law applicable to all questions of fact involved in the issue.

An'application of this principle cures the alleged defect in the proofs in respect to the certificate of the justice. A certificate of a justice of the peace of Waukesha accompanied the proofs, and forms a part thereof. This certificate is in the form required by the conditions of the policy, but was not made by the nearest justice to the place where the loss occurred, as therein required. The testimony of the plaintiff, which is hereinbe-fore stated, tended to show that the general agent waived the conditons of the policy in that respect, and consented that the certificate might be made by a justice of Waukesha. We must presume that the jury found that such waiver was made, if the question was a material one in the case.

We now come to the consideration of the question, whether the action is barred by reason of the failure of the plaintiff to commence it within one year after the loss occurred. The failure of the defendant to notify the plaintiff that the last proofs were not satisfactory, is no waiver of the objection that the action was not commenced within the time limited in the contract, for the reason that such notice could have been of no possible service to the plaintiff. The doctrine of waiver which we have discussed, applies only to defects which can be remedied if the objection be taken. If the plaintiff was bound at all events to bring his action within a year after the loss, his right of action was gone before he furnished the proofs to the defendant, and no act of his could restore it. Hence this objection was not waived by the silence of the defendant. Cornell v. Mutual Fire Ins. Co., supra.

Provisions limiting the right of action on policies of insurance to much shorter periods than is prescribed by the statute laws of the country for the commencement of similar actions, are almost universally inserted in such policies, and the binding force of those provisions upon the parties to the contracts, has been as universally recognized by the courts. But such contract of limitation, in any given case, like all other stipulations and covenants, may be modified, waived or extended by the parties thereto. Or the party in whose favor the limitation is imposed may be estopped, by his own act or omission, from claiming the benefit of it. We are now to inquire whether there has been any act or omission on the part of the defendant, which operates, either by way of estoppel or of waiver, to extend the time limited by the contract within which the action should have been commenced. Or, to speak with more precision, perhaps, the inquiry is, whether there is evidence in the case tending to prove such act or omission.

It will be remembered that the contract gives the defendant sixty days after satisfactory proof of the loss has been furnished, within which to pay the same; and we have seen that the plaintiff is not expressly bound to furnish such proofs at or before any .specific time. It would seem then to be a fair construction of the contract, to hold that it gives the plaintiff, by necessary in-feren ce, the balance of the twelve months after deducting such sixty days, or about ten months, in which to prepare and furnish such proofs.

It does not seem to require much argument to demonstrate tbat if, by any act or omission of the responsible officers and agents of the defendant, the plaintiff: should be induced to suspend action in the premises, for a given time, such time should not be deemed a part of the twelve months to which his right of action is limited by the original contract. To hold otherwise would be in many cases to allow a person to take advantage of his own wrong. Cases may readily be supposed, where, by delays in passing upon the sufficiency of proofs of loss, in investigating losses, or in replying to communications — by general objections to proofs, refusing to specify wherein they are defective, and thus compelling the claimant to grope his way in the dark, and find out as best he may wherein he has come short of fulfilling the requirements of his policy — and by many other means, the agents and officers of an insurance company might, without committing any act which the law would adjudge fraudulent, so embarrass the claimant that he would be entirely unable to make satisfactory proofs of his loss within the time which his contract gives him for that purpose, and yet be entirely free from any laches whatever. The idea that the remedy on the policy may be lost under such circumstances, is not to be entertained for a moment. The plainest principles of justice demand that the time thus lost by the plaintiff without any fault on his part, but through the fault of the defendant, should be added to the time within which they contracted in the first instance that the action should be commenced, and the plaintiff be not barred of his remedy on the policy until such additional time has expired.

Eor discussions of the subjects of waiver and estoppel in relation to such contracts, in addition to the cases before cited, see Ames v. N. Y. Union Ins. Co., 4 Kernan, 253; Ripley v. The Astor Ins. Co., 17 How. Pr., 445; Mayor &c. of New York v. The Hamilton Fire Ins. Co., 10 Bos., 537; Same Case, 29 N. Y., 45.

In the latter case, the action was upon a policy of insurance which contained a provision that an action upon it must be brought “ within tbe term of six months after any loss or damage shall accrue and it also contained a further provision that “payment of losses shall be made in sixty days from the date of the adjustment of the preliminary proofs of loss by the parties.” In this case the corresponding provisions of the policy are, that the action must be brought “ within twelve months next after the loss shall have occurred,” and that payment of losses is to be made “sixty days after due notice and satisfactory proofs of the same, made by the assured and received at the office of this company.” It is obvious that there is no difference in jninci-ple in these corresponding provisions of the two policies, and evidently the same rules of construction are applicable to each policy.

• In the New York case, the court of aj>peals, without dissent, held that construing the two provisions of the policy together, the term “ after any loss or damage shall accrue,” contained in the first provision, must be construed to mean “ after the right of action shall have accrued.” Applying that rule of construction to the contract in the present case, the plaintiff’s right of action on the policy was not barred by the limitation therein, contained, until September, 1869, or until nearly a year after the action was commenced.

But in the view which we take of this case, we are not called upon to decide whether the court of appeals has or has not laid down the true rule of construction. But we deem it proper to say that there are many considerations, both legal and equitable, which strongly incline us to approve the doctrine asserted by that court.

But to return to the subject of waiver. We have seen that if, by any act or omission of the defendant, acting through its authorized agents, the plaintiff was induced to suspend the making and furnishing of his proofs of loss for a given time, such act or omission operates as a waiver of the limitation clause in the policy to that extent, and the time thus lost is to be added to the twelve months prescribed by the policy, in determining tbe time witbin wbieb tbe action thereon must be commenced. ¥e have also stated wbat effect must be given to tbe verdict of tbe jury in this case, in view of tbe fact that no instructions were given by tbe court. It results from these principles, and from tbe views above expressed, that tbe only remaining question to be considered is: Did tbe testimony introduced on tbe trial in tbe circuit court tend to show that Ames, tbe general agent of tbe defendant (by whose acts and omissions in this business tbe defendant is clearly bound), did, or omitted to do, any act, by reason whereof tbe plaintiff was reasonably delayed in making and furnishing bis proofs of loss for a period of time equal to that between June 22d and September 30th ?

We think that this question must be answered in tbe affirmative. Tbe letter of September 24th, 1867, written by Ames, and sent to tbe attorneys of tbe plaintiffs, stated generally that tbe proofs which bad then been furnished were quite defective, and did not comply with tbe requirements of tbe policy, but did not state wherein they were defective. It also notified tbe attorneys that tbe writer would visit Waukesha in October, and would call on them. Tbe plaintiff bad a right to infer from that letter that when tbe agent visited Waukesha be would specify tbe particulars wherein bis proofs were defective, and thus facilitate tbe correction of them. There is nothing therein from which tbe plaintiff could infer that Ames deemed it no part of bis duty to tell him'bow to make out bis proofs of loss, or that be would decline to do so, but quite tbe opposite. Tbe letter of March 1st, 1868, conveyed tbe first intimation to tbe plaintiff of tbe hostile attitude of tbe agent towards him.

In relation to tbe letter of March 1st, we have only to say that if tbe writer did not mistake bis legal duty, certainly, as a business man acting on behalf of a company depending for its success upon tbe patronage of tbe public, be grievously mistook bis duty both to bis employer and tbe defendant. But we are not quite sure that be did not mistake bis legal duty. Had the plaintiff relied upon tbe proofs wbicb be sent to Ames, and brought an action to recover bis loss without furnishing additional proofs, we should hesitate somewhat before holding that the objections to such first proofs were not waived bj the failure to specify wherein they were defective.

The letter of September 24th, then, might have reasonably induced the plaintiff to stay proceedings in respect to perfecting his proofs until the agent should visit Waukesha. There is considerable testimony tending to show that it produced that effect. The agent did not visit Waukesha at all, but the local agent there frequently informed the plaintiff that he was expected there every week. We find nothing in the testimony from which the plaintiff could have inferred that the promised visit would not be made at some time during the fall and winter, until the letter of March 1st was received. And such inference could only be drawn from that letter by reason of its silence on the subject, and its manifestly hostile tone and spirit.

We conclude, therefore, that there was evidence from which the jury were warranted in finding (as we must assume they they did find), that by the acts and omissions of the authorized agent of the defendant, the plaintiff was delayed about five months in making his proofs of loss, and that by means thereof the time within which he might have commenced the action without being barred by the limitation contained in the policy, was extended to a time later than September 80th, 1868, the date of the commencement thereof

It follows from these views that the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.