Engebretson v. Hekla Fire Insurance

58 Wis. 301 | Wis. | 1883

Lyon, J.

Under the terms and stipulations contained in the policy, the rendering of sworn proofs of loss to the defendant company at Madison within ten days after the insured property was burned (unless the same was waived by the company) is a condition precedent to the right of the plaintifF to recover. This proposition is not controverted by •the learned counsel for the plaintiff. That such proofs were -not so rendered is undisputed. If, therefore, the plaintiff is •entitled to recover on the policy, it is because the company have, in some manner, excused him from rendering 'such-proofs. The circuit court held, presumably, that there is no testimony in the case tending to show a waiver by the company of the condition in the policy requiring the plaintiff to render such proofs. The nonsuit can be sustained on no other ground. Whether any such testimony was given on the trial is, therefore, the principal question to be determined on this appeal. The claim that the plaintiff was excused by the company from rendering sworn proofs of loss, is predicated entirely upon the plaintiff’s testimony of four conversations with Mr. Peck, the defendant’s local agent at La Crosse. One of these conversations was on July 20th, the day after the loss; another on July 26th, one week after the loss; and _the others occurred a week or ten days after July 26th. It will be observed that the last two conversations were after the time had expired within which the proofs of loss were required by the policy to be rendered. The substance of these several conversations will be found in the foregoing statement of facts.

There is nothing in the testimony tending to show that in the conversations between the plaintiff and Peck the subject of rendering proofs of loss was mentioned or referred to, or that Peck had any knowledge that the same had not been, or were not intended to be, rendered by the plaintiff, and nothing was said to put Peck upon inquiry on the subject. Indeed, these conversations are entirely consistent with the theory that Peck expected the plaintiff to render such proofs, if he had not already done so, and there is not a word in either of them which could justify a belief on the part of plaintiff that he was thereby excused from performing the conditions required of him in the policy. Neither did Peck require the plaintiff to do, or omit to do, any act, the doing or omission of which would estop the defendant from asserting its right to have the proofs rendered within the stipulated time. The conversations on the part of Peck, as finally summed up by the plaintiff, amount to nothing more than an assurance by him that the company would properly discharge its duty to the plaintiff in the matter of the loss. The promise by Peck to notify the company of the loss was merely a promise to do what it was his duty to do in. any event. It could not reasonably be inferred therefrom that such notice should take the place of, and excuse the plaintiff from rendering, the required sworn statement of the particulars of his loss. The statement made by Peck in the last conversation, to the effect that the company would not pay the loss because there was not $100 worth of goods in the store at the time of the fire, contains no element of an estoppel, because it was made after, the plaintiff was in default, and it does not appear that it influenced, or could have influenced, his action in respect to the loss in the slightest degree.

Neither do the letters of February 2d. and 3d, written by the secretary and president of the defendant, respectively, to the attorneys of the plaintiff, operate as a waiver of proofs of loss. The letter of the secretary expressly asserted a forfeiture of the policy, because such proofs Avere not furnished in time, and that of the president merely states that he concurs with the adjuster in the opinion that the company is not liable, either in law or equity, to pay the loss.

This question of waiver has been, very fully and carefully considered by this court in several insurance cases Avhich are cited in the brief of counsel for appellant. None of them are applicable to the case made by the record before us. This will be so readily seen by reference to them that it is deemed quite unnecessary to point out more particularly the inapplicability of the rule of those cases to the one here presented.

We have considered the testimony upon the hypothesis that Peck was the agent of the defendant company “ to all intents and purposes ” (R. S., s£c. 1977), and might bind the company by any act or word which could operate as a waiver of the sworn statement of loss required by the policy had the same been done or spoken by a principal officer of the company. An argument has been submitted by counsel for the defendant, in which it is claimed that sec. 5, ch. 240, Laws of 1880, limits the operation of seo. 19YY, E. S., and that while under the latter section a local agent might waive the rendering of a sworn statement of the loss, and bind the company thereby, under the act of 1880 he could not do so. It is not found necessary to decide the point.

Our conclusion is that there is no testimony tending to prove a waiver of plaintiff’s obligation to render the sworn statement of his loss, as required by the terms of the policy, and hence that the nonsuit was properly ordered.

A single other alleged error remains to be considered. Pending the motion for a nonsuit, the plaintiff offered to prove by his own testimony that “ he would have filed his proofs of loss with the company according to the terms of the policy before the expiration of the ten days mentioned in the policy, but for what Mr. Peck, the agent of the company at La Crosse, said to him on the first and second days he saw him, and he was induced not to file such proofs on account of what Mr. Peck said to him.” An objection to the testimony so offered was sustained on the ground that the same, if received, would' not tend to establish a cause of action in favor of the plaintiff. We think the ruling was correct. As we have already said, Mr. Peck said nothing to the plaintiff in either of those conversations which excused him from the obligation to renden his proofs of loss, and he had no right to put any such construction upon what Mr. Peck said to him.

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