120 P. 846 | Utah | 1912
Lead Opinion
This action was brought to recover upon an insurance policy -issued by appellant to insure respondent’s property against loss by fire to the amount of $1000. Respondent, in his complaint, in substance, alleged' the issuance and delivery of the policy to him by appellant; that during the life of the policy a fire occurred by which the property covered by the policy was destroyed, to his damlage in the sum of $1000; that he had complied with all of the conditions of the policy, and that the appellant had failed to do so-, wherefore he asked judgment for the amount of the damages. Appellant, in its answer, admitted the issuance of the policy in question; admitted that the alleged fire occurred during the life of the policy, and denied all other allegations contained in the com
Appellant assigns and relies upon the following alleged errors: (1) That the court erred in admitting in evidence a copy or duplicate of respondent’s purported proofs of loss; (2) that the court committed error in sustaining the objection to the question propounded to appellant’s agent who issued the policy as follows: “Did De Michele (respondent) ever pay the premium on this insurance to you ?” and (3) that the court erred in denying appellant’s motion for nonsuit.
In appellant’s answer it admitted that the policy in question was issued to the respondent on the 4th day of December, A. D. 1909, and that the fire alleged to have destroyed the property occurred on the night- of the 4th day of January, A. D. 1910. The undisputed evidence is to the effect that immediately after the fire appellant’s
*316 “A provision in the policy that notice shall be given to and proofs furnished the company is, as a general rule, complied with by giving the notice and furnishing the proofs to an agent of the company.”
The authorities seem to- agree that unless there is an express provision to the contrary in the policy an agent who is authorized to solicit insurance, to issue and countersign policies and to collect premiums, is an agent representing the company for the puipose of receiving or being served with the proofs of loss in case of a fire. It is held that furnishing proofs of loss to such an agent is furnishing them to the company where the policy requires proofs to be furnished to the company. (Walker v. Lancashire Ins. Co., 188 Mass. 560, 75 N. E. 66; Harnden v. Milwaukee M. Ins. Co., 164 Mass. 382, 41 N. E. 658, 49 Am. St. Rep. 467; Vesey v. Com’l Union Assur. Co., 18 S. D. 632, 101 N. W. 1074; 4 Cooley’s Bfs. on L. of Ins., p. 3379 and cases there cited.)
It is also held in the foregoing cases that the insured is not bound by any special limitation of power that the company may have imposed upon such an agent unless the insured had knowledge thereof. We are of the opinion, therefore, that in this case the proofs of loss were properly left with Mr. Brum-mitt as the representative of the company.
Appellant’s counsel in effect contends, however, that although it be conceded that Mr. Brummitt was the proper person to receive the proofs of loss, yet the court erred in admitting in evidence a. copy of the purported proofs of loss in this case because the original served on Mr. Brummitt had not been accomrted for. What the court admitted in evidence, however was not a copy, but, under the rule established by the modern decisions, was a duplicate original. Mr. Davis, who represented the respondent, and who prepared and served the proofs of loss upon Mr. Brummitt, testified that he prepared three duplicates, one of which he left
“The different numbers or impressions of a writing produced by-placing carbon paper between sheets of paper and writing upon the exposed surface are duplicate originals and either may be introduced in evidence without accounting for the nonproduction of the other.”
A mere inspection of the proofs of loss kept by Mr. Davis, a duplicate of which had been served on Mr. Brummitt, discloses that it was what is commonly called a carbon copy and was thus a duplicate original within the rule stated by the Supreme Court of Minnesota in the Elfstrom! Case just referred to. The precise question here involved was before the Missouri Court of Appeals in Catron v. Ins. Co., 67 Mo. App. 544. In that case the copy of the proofs of loss that was retained by the insured was, over the objection of the company, admitted in evidence without serving notice upon the company to- produce the one served upon it and without accounting for that one. The court held that the paper was properly admitted in evidence under the rule which applies to duplicate originals. To the same effect is the case of Westbrook v. Fulton, 79 Ala. 510. The district court, therefore, did not err in admitting in evidence respondent’s proofs of loss.
Nor is the contention tenable that the court committed prejudicial error in sustaining the objection to the question appellant’s counsel propounded to Mr Brummitt relative to the nonpayment of the premium on the
“The word ‘issue’ means to deliver for use, and, as used in an allegation in an answer that plaintiff procured to he issued to her a policy of insurance, will he construed as equivalent to an allegation to deliver to and acceptance of such policy by the plaintiff.”
(See, also, Sisk v. Citizens’ Ins. Co., 16 Ind. App. 565, 45 N. E. 804, and Spencer v. Myers, 73 Hun, 274, 26 N. Y. Supp. 371.) Nor is there anything in the answer by which the foregoing admission is in any way qualified. Neither is it claimed in the answer, nor was it at the trial, that the policy in question was delivered upon the condition that the insurance should not become effective or should cease to be so after a specified time in case the premium remained unpaid. It is true that in the attempt to plead the affirmative defense of nonpayment the appellant averred “that the said policy of insurance sued upon in this action was issued to the plaintiff by the defendant, and the property in such policy mentioned insured by defendant against loss or damage by fire in consideration of a premium of twenty'dollars to be paid by plaintiff to defendant; that said plaintiff has never paid said premium nor any part thereof.” This is all there is with regard to the nonpayment of the premium. There is thus no claim that the policy was delivered upon any condition precedent or that it should not have become effective unless the premium were paid, or that credit was not extended, nor that the policy was not in full force and effect from the time of its delivery. In addition to this, the policy was produced at the trial by respondent and was by him introduced in evidence. A careful inspection of its terms and conditions also shows that there is nothing in the policy which prevented the insurance from becoming effective without the payment of the premium. We thus have before us a record from which it appears that a policy had been unconditionally delivered to the insured as a completed contract of insurance. The mere fact, therefore, that the premium may not have been
A policy of insurance will be enforced even though it contains an express provision that no liability shall attach until the premium is paid if the policy was unconditionally delivered as a completed contract of insurance. The author in 1 Joyce on Insurance, section 79, states the
“Where the contract is otherwise complete, an unconditional delivery of the policy operates as a waiver of the prepayment of the premium, notwithstanding an express provision therein that the company shall not be liable until the premium is actually paid, and the company cannot, under such circumstances, cancel the policy for nonpayment without first putting the insured in de*320 fault by some act, sucb as a new demand. But tbe mere nonpayment of tbe premium on demand, does not of itself destroy tbe policy where tbe company fails to give notice of its election to rescind tbe contract.”
The law as stated by Mr. Joyce is supported by tbe following authorities: Farnum v. Phoenix Ins. Co., 83 Cal. 246, 23 Pac. 869, 17 Am. St. Rep. 233; Griffith v. N. Y. Life Ins. Co., 101 Cal. 627, 36 Pac. 113, 40 Am. St. Rep. 96; Berliner v. Travelers’ Ins. Co., 121 Cal. 451, 53 Pac. 922; Raulet v. N. W. etc., Ins. Co., 157 Cal 224, 107 Pac. 296.
Under such circumstances, however, the question of waiver becomes one of fact to be submitted to and determined by the jury. As we have already attempted to show, in this ease there is no question of waiver, and hence there was
But there is still a, further reason why appellant cannot legally complain of the ruling in question. The question to which the answer was refused was very adroitly framed and if answered in the negative would still not have settled the ultimate fact whether the premium was or was not paid to appellant. The question is, “Did De Michele
What has been said also practically disposes of the assignment that the court erred in overruling the motion for nonsuit. When the motion was interposed, respondent
The judgment is affirmed, with costs to respondent.
Dissenting Opinion
I dissent upon the ground that the court erroneously refused the defendant to' show that the premium for the insurance was not paid. In this particular the plaintiff 'alleged that the defendant “for and in consideration of the sum of twenty dollars to it in hand paid insured the plaintiff” in the sum of $1000' against loss by fire on property described in the complaint; that “said policy of insurance is numbered 7714618,” and was “dated December 4, 1909,” and “insured” plaintiff’s property for the term of one year from the 7th day of November, 1909. He then alleged his loss by fire, a demand for payment, and defendant’s refusal to pay, and made the general averment that he performed “on his part all the requirements demanded by said policy of insurance.” Further than these averments there is no allegation in the complaint that the defendant issued or delivered the policy; neither was the substance of the terms of the policy pleaded, nor was the policy or a copy thereof attached to or made a part of the complaint, nor was it otherwise therein referred to. The defendant in its answer admitted that “on or about the 4th day of December, 1909, in lieu of another policy theretofore issued to J. T. Smyth the defendant issued to the plaintiff its policy of insurance” for a term of one-year from the 7th day of November, 1909, for the sum of $1000, on the property described in the complaint, but denied that the payment of the premium had been made, and averred “that the said policy of insurance sued upon in this action was issued to the plaintiff by defendant and the property in said policy mentioned insured by defendant against loss or damage by fire in consideration of a premium of twenty dollars to be paid by plaintiff to defendant; that said plaintiff has never paid said premium nor any part thereof.” The defendant made no other admissions or allegations of an unconditional or other delivery of the policy. To this allegation of nonpayment of the premium the plaintiff filed a reply in which he denied “that said plaintiff has never paid said premium or any part thereof.”
Of course the law is well settled that even where prepayment of the premium is expressly provided as a condition precedent to liability, yet such prepayment may be waived by extending credit, or by an unconditional delivery of the policy from which the giving of credit may be presumed, or by proof of other facts or circumstances showing a waiver of prepayment; and where the fact is made to appear, and is found,
The question propounded by the defendant, on its face, showed the character of the evidence sought to be elicted, and the particular fact in issue which it tended to prove. This would not have been any more evident, had counsel stated what the answer of the witness would be to the question propounded were the witness permitted to answer, or what evidence was sought by the question propounded. The suggestion that the defendant, to be entitled to malee proof of nonpayment of the premium, ought to have pleaded such nonpayment as a counterclaim, is, I think, wholly beside the question.