Badger v. Glens Falls Insurance

49 Wis. 389 | Wis. | 1880

LyoN, J.

Id. the case of this plaintiff against the Phoenix Insurance Company of Brooklyn (decided herewith), for a loss caused by the same fire, we hold that the full examination of the plaintiff, under oath, concerning the loss, pursuant to a stipulation in the policy, is a waiver of the formal proofs of loss required by the policy. The authorities upon which that decision is made are probably broad enough to justify an application of the same rule to the present case. Here the plaintiff and his wife were fully examined (but not under oath) concerning the loss, by the agent of the company, and a schedule of the property destroyed or inj ured was made by the agent on such examination and retained by him. No intimation was made to the plaintiff that further proofs of loss would be required.

We do not hold in this case that proofs of loss were waived by such examination, but leave that point undecided. It may well be that the company is entitled to a sworn statement of the loss under the contract, and this is not furnished by the unsworn examination. But we are clearly of the opinion that such examination was a waiver of any mere notice of the loss required by the policy. The object of the notice is to give information to the insurer that a loss has occurred, so that it may examine and ascertain its extent, and the circumstances under which it occurred. If the insurer acts upon information obtained iii another aDd less formal manner (as on verbal notice, when written notice is required), and proceeds to make such investigation, and in doing so requires the assured to submit to an examination, whether under oath or not, the giving of formal notice ceases to be of any importance, and the insurer ought to be held estopped to demand it. This is all that need be said concerning the failure of the plaintiff to give the company notice in writing, forthwith after the fire, of the destruction of the insured property.

The loss occurred on the night of the 29th - and 30th of December, and the plaintiff made out and doubtless mailed to the company formal proofs of loss on the 29th of the following month. These proofs were received by the company at its office in the state of New York on the thirty-first of the latter month. If the loss dates from the 30th of December, the proofs were mailed on the 30th day thereafter. "We are not prepared to say that the plaintiff did not, “ within thirty days, render a particular account of such loss,” as required by the policy. But, however that may be, the only objection which the company made to the proofs was, that the plaintiff did not, within thirty days after the loss, procure and produce the certificate prescribed in the policy, of the chief of the fire department of Oshkosh (within which city the insured property was situated), or his assistant, but only the certificate of a notary. That this specific objection was an effectual waiver of all other objections which might have been made to the proofs, but were not, is the settled law of this state. Killips v. Ins. Co., 28 Wis., 472; O’Conner v. Ins. Co., 31 Wis., 160.

Within a reasonable time after such objection was made to his proofs of loss, the plaintiff furnished to the company the certificate in due form of the chief of the fire department of Oshkosh. It does not appear that any objection was made thereto by the company, further than is contained in the objection to the original proofs. That objection is, that the certificate was not furnished within thirty days after the loss.

The only remaining question,to be determined is, Does the policy require that such certificate shall-be furnished within thirty days after the loss? The policy provides that “persons sustaining loss or damage by fire shall forthwith give notice in writing of said loss to the company, and within thirty days render a particular account of such loss; . . . and shall also produce a certificate under the hand and seal of the chief of the fire department or his assistant,” etc. Construing this provision strictly, to avoid a forfeiture of the contract, we cannot say that it requires the assured to produce such certificate within thirty days after the loss. In the light of the rule which requires us to construe the clause strictly against the insurer, to avoid forfeiture, we must read the contract thus: “ The assured shall render the required account within thirty days after the loss, and he shall produce the required certificate within a reasonable time after the loss.” Precisely the same rule of construction was adopted in the two cases above cited, wherein it was held that a clause in a policy that, “in case of loss, the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss,” does not require the account to be rendered immediately, but only within a reasonable time after the loss.

It is believed that the views above expressed dispose of all the material errors assigned, adversely to the defendant.

By the Court. — 'The judgment of the circuit court is affirmed.