Oshkosh Match Works v. Manchester Fire Assurance Co.

66 N.W. 525, 92 Wis. 510, 1896 Wisc. LEXIS 292

• Court: Wisconsin Supreme Court
• Decided: March 10, 1896
• Status: Published

Opinion

PiNNey, J.

1. Under tbe conceded facts in this case, we-think that it is impossible to sustain or justify tbe direction of a verdict for tbe plaintiff. It is beyond dispute that there-bas been a breach of tbe conditions of tbe policy upon which tbe action is founded. Tbe assured did not, as it agreed it. would, after the fire, “forthwith separate tbe damaged and. undamaged personal property, put it in the best possible order, make a complete inventory of the same,” and did not, “ when required, exhibit to the defendant’s adjuster all that remained of the property ” described in the policy. On the contrary, without any excuse or reason whatever for it, except the desire to fill an order it had received, it sold and shipped to Louisville, Ky., 908 cases of the matches that had been saved by sorting them out of a large number of cases, the contents of which had been more or less injured, and repacking and placing them in new cases. The evidence fails to show, that a single case had been saved from the fire in a wholly undamaged condition, but quite the contrary. All the matches not thus saved and repacked, although not useless, were unmarketable, and, with the cases and other debris, were removed and burned up in the plaintiff’s yard. About 600 cases were so completely destroyed that nothing whatever was saved from them. It is not necessary to consider whether the matches which were not saved, and which were not wholly destroyed, may or may not fall within the category of damaged property, as contended by the plaintiff, or whether they might be regarded as wholly destroyed, because unmarketable; for, under the conceded facts, the sale and shipment of the 908 cases which had been so sorted out and saved, before the defendant’s adjuster arrived upon the scene, was a clear breach of the condition of the policy, which worked an effectual forfeiture of its obligations. It was the duty of the plaintiff, under the policy, after having-selected the matches put in these cases from damaged or unmarketable or worthless matches, to have exhibited or had them in readiness to exhibit to any person designated by the company, as all that remained of the property described in the policy. The plaintiff thus disabled itself from performing the plain requirements of the policy before the arrival of the adjuster, and had effectually put it out of the power of the company to take these cases, as it had the right to •do, at their appraised value. The defendant, when the proofs of loss were submitted, promptly raised these objections, and has not, we think, in any manner waived them. The conditions referred to are substantial and important, and are designed, among other things, to enable the company to fairly investigate and ascertain the loss, and to detect dishonesty and fraudulent practices. They were conditions for the protection of the company, to be performed after the loss, and until performed or performance had been duly waived no recovery could be had on the policy. We must regard these provisions as having been deliberately agreed to, and with the understanding that they were material and would be performed accordingly; and it is the duty of the court to give full effect to them as written.

2. The evidence as to what took' place between the local agent of the defendant, McNabb, and Burgess, the secretary and treasurer of the plaintiff, wholly fails to show a waiver of the conditions. After his connection with the writing of the policy had ceased, McNabb had no authority, as local agent, to waive these conditions. Hankins v. Rockford Ins. Co. 70 Wis. 4; Bosworth v. Merchants' F. Ins. Co. 80 Wis. 393; Stevens v. Queen Ins. Co. 81 Wis. 335; Bourgeois v. Mut. F. Ins. Co. 86 Wis. 402. Besides, there is no claim that McNabb ever, in any way, authorized or consented to the disposition and removal of the 908 cases, and the alleged waiver by him as local agent was oral, and not in writing, as required by the- terms of the policy. Carey v. German Am. Ins. Co. 84 Wis. 88; Knudson v. Hekla F. Ins. Co. 75 Wis. 198; Bourgeois v. N. W. Nat. Ins. Co. 86 Wis. 606. The defendant, after the proofs of loss had been re- ' ceived; required an examination of Burgess, the plaintiff’s secretary and treasurer; and he was examined accordingly, ' but by the terms of the policy it is provided that no waiver should arise in consequence of such requirement and examination. There is no other ground for imputing any waiver to the defendant, or for bolding that it is precluded from insisting on its defense. The circuit court, therefore, erred in refusing to nonsuit the plaintiff,- and in directing a verdict in its favor.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.