191 Ind. 554 | Ind. | 1921
Appellee recovered a judgment for $11,463.25 against the appellant upon a policy of fire
The facts as to the issuance of the policy, the destruction of the insured property by fire and the breach by appellee of a condition in the policy by which the hazard was increased, were established by uncontradicted evidence, the case turning principally on the controverted questions whether or not the agents of the appellant company had power to waivé certain conditions in the policy, and whether or not, if they.had such power, those conditions were in fact waived.
The special finding recited substantially the same facts which were alleged in the complaint,- and in the several paragraphs of answer and reply, and the exceptions to the conclusions of law present for decision the same questions of law as the exceptions to the overruling of appellant’s demurrers to certain of those pleadings. Therefore we shall consider the questions of law discussed by counsel with direct reference to the special finding and the exceptions to the conclusions of law thereon. Campbell v. Smith (1913), 180 Ind. 159, 161, 101 N. E. 89.
“The undersigned is now in possession of information from which it appears that since our policy No. 28840 was' issued and some time before the occurrence of the fire * * * you have made breach of certain conditions * * * whereby said policy became and was voidable and void at and prior to the time of said fire * * * You have so violated the provisions of said policy relating to a forbidden increase of hazard. Because of the premises this company denies any liability to you under said policy by reason of the fire, loss and damage aforesaid, and now and hereby elects to rescind said policy and does rescind the same * * * (Tender of the premium and interest is recited) * * * With a reservation of all objections to your recovering in any form under said policy for said fire, loss and
Appellant insists that the last two sentences quoted from the notice, by which appellee was informed that the appellant reserved all objections, waived nothing, and referred appellee to the provisions of the contract, prevented this written notice from constituting a waiver of formal proofs of loss. And he cites one case in which an insurance company, without denying its liability, merely wrote to the insured, that if he or his attorney thought he had a valid claim, he was "referred to the contract itself for instructions as to such action as you may see fit to take,” but that the insurance company waived no rights under the contract and the conditions thereof; and to another case in which a claim for $1,220 on a policy which had covered a dwelling house and barn, and different items of their contents, in the total amount of $1,620, was presented, and the adjuster for the insurance company offered to pay $750; and when
In both of these cases it was held that proofs of loss were not waived. But the court in each case declared the rule to be that a denial of all liability, and an absolute refusal to pay the loss, before the expiration of the time for filing proofs, would amount to a waiver of such proofs. And in each case the court held that there was no such denial of liability and refusal to pay whether proofs of loss should be furnished or not, as to bring the case within that rule.
We need not consider the question whether the cases cited were correctly decided upon their own facts, and as to that we decide nothing. They are clearly distinguishable from the case at bar. In this case the notice in writing served upon the appellee by the appellant, only twenty days after the fire, unequivocally asserted that “this company denies all liability to you under the policy,” that “said policy became * * * void at and prior to the time of the fire,” that the company “elects to rescind said policy and does rescind the same,” and that the premiums paid were tendered back; and a tender of the premiums was actually made.
Under the established law of the State of Indiana, such continuing of the policy in force on the part of the insurance company, having knowledge of the changed use, would waive the condition avoiding the policy for that cause. Such a stipulation that the violation of a condition subsequent shall make the policy “void” means-only that it shall be voidable at the election of the insurance company. Havens v. Home Ins. Co. (1887), 111 Ind. 90, 12 N. E. 137, 60 Am. Rep. 689; Phenix Ins. Co. v. Boyer (1891), 1 Ind. App. 329, 27 N. E. 628; German-American Ins. Co. v. Yeagley (1904), 163 Ind. 651, 71 N. E. 897, 2 Ann. Cas. 275; Farmers Mut. Fire Ins. Co. v. Jackman (1905), 35 Ind. App. 1, 18, 73 N. E. 730; Masonic, etc., Assn. v. Beck (1881), 77 Ind. 203, 207, 40 Am. Rep. 295; Ohio Farmers’ Ins. Co. v. Vogel (1906), 166 Ind. 239, 244, 76 N. E. 977, 3 L. R. A. (N. S.) 966, 117 Am. St. 382, 9 Ann. Cas. 91; Glens Falls Ins. Co. v. Michael (1905), 167 Ind. 659, 679, 74 N. E. 984, 79 N. E. 905, 8 L. R. A. (N. S.) 708.
Some of these decisions are based upon statutes different from any enacted in the State of -Indiana. And the reasoning contained in the others is sufficiently answered by saying that at the time the contract of insurance under consideration was entered into it was and for many years had been the established law of Indiana, as ascertained and declared by the highest courts of the state, that such a provision as the one quoted may be waived, and is not effectual to prevent the acts of an authorized agent of the insurance company, in the conduct of its business, from constituting a waiver of conditions in its policies. German-American Ins. Co. v. Yeagley, supra; West v. National Casualty Co. (1916), 61 Ind. App. 479, 112 N. E. 115; Continental Ins. Co. v. Bair (1917), 65 Ind. App. 502, 114 N. E. 763, 116 N. E. 752; Indiana Ins. Co. v. Capehart (1886), 108 Ind. 270, 8 N. E. 285; German-American Ins. Co. v. Sanders (1897), 17 Ind. App. 134, 46 N. E. 535; Joyce, Insurance (4th ed.) §439.- Under the cases cited the facts found by the court showed that the provision in question was effectually waived:
Both lines of authorities are collected in notes in the following publications: 107 Am. St. 102, et seq.; 10 L. R. A. (N. S.) 1064, et seq.; 18 L. R. A. (N. S.) 839, et seq.; 51 L. R. A. (N. S.) 261; 2 Ann. Cas. 114, 115; 14 R. C. L. §344, 1161.
What has been said above also disposes of all objections to the admission of evidence discussed in appellant’s brief, and all questions not so discussed are waived.
The judgment is affirmed.