57 Vt. 520 | Vt. | 1885
This is an action of assumpsit on a policy of'fire insurance, and comes up on the report of a referee, upon which the court below rendered a judgment for the plaintiffs.
The defendant relies upon various specified defects in the proof of loss submitted by the assured; and in reply it is insisted, first, that the declarations of Gray, the special agent of the company sent to adjust the loss, which were made to the plaintiff, John G. Findeisen, and were, according to the referee’s findings, “that the claim against the company was worthless, and that the loss would not be paid, because he burned the property,” amounted to a waiver of the proofs of loss required by the conditions of the policy.
It is established beyond question, that such requirements are for the benefit of the company and may be waived by it; and also that, being conditions of forfeitui’e, they are not favored by the law, and a waiver of them is often found on slight evidence. Thus, it has been held that;an unqualified refusal by the company to pay the loss upon other specified grounds, made before the expiration of the time within which it was the duty of the assured, by the terms of the policy, to file his proofs of loss, is an act from which the triers may find a waiver of such proofs. See authorities cited in Lyon v. Travellers’ Ins. Co. 31 Alb. L. J. 59; 20 N. W. Rep. 829; and in Mosley v. Vt. M. F. I. Co. 55 Vt. 142.
But it is equally well settled that a waiver is, as remarked by Taft, J. in Donahue v. Windsor County Ins. Co. 56 Vt., on page 382, “ an intentional relinquishment of a known right ”; and that whether or not there has been a waiver is always a question of facts for the jury. Donahue v. Ins. Co., supra; Home Ins. Co. v. Baltimore Warehouse Co. 16 Am. Law Reg. 162; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35, and authorities supra.
The plaintiff, John G. Findeisen, seasonably proceeded to make out and forward to the company a proof of loss, which is made a part of the case, and which he signed and swore to as agent for his wife, who was the owner of the property insured, and who was named in the policy as the person insured. It is claimed by the defendant that this proof of loss was not a compliance with the conditions of the policy; and the first objection made is, that it should have been signed and sworn to by the wife herself; while, on the other hand, the plaintiffs insist that the proofs were properly executed and verified by the husband in his capacity as agent; and further, that by specifically objecting to the proofs, when filed, because of their execution by the husband, and declining to return them for execution by the wife, or to specify the other objections .now raised, the defendant must be treated as having waived them, or be held estopped to now insist on them.
The policy provides, by the 8th clause of the conditions, that “persons sustaining loss of damage by fire shall forthwith give notice of such loss to this company, and as soon thereafter as possible, render a particular account of such
Under the terms of the contract, the facts shown, and the further fact found by the referee that the female plaintiff had no personal knowledge as to the property in the mill at the time of the fire — one of the most important things required to be set forth in the proof of loss — it is difficult to find any sound reason, either in the contract itself or in law, for holding that the signature and oath of John G. Eindeisen, as agent for his wife, the person insured, and whose full authority to act in that capacity in respect of all the acts performed by him is not questioned, was not entirely sufficient. Certainly the company could not have been prejudiced by the fact that the proof was executed by the agent instead of the principal; because objections to the sufficiency of the proof as offered could be specified and in
But even this is not necessary. It appears from the correspondence attached to the referee’s report, that John G-. Eindeisen, with all reasonable promptness, upon being advised that the company objected to the proof of loss forwarded by him, offered, if they would return the same, to make it satisfactory in all respects wherein .the company would specify that it was faulty or insufficient, and have the corrected and amended proof executed by the wife, if the company required that to be done. No.satisfactory reason appears for the refusal of the company to comply with this request and offer. If it thought proper to wholly reject the paper forwarded and refuse to consider or treat it as a proof of loss in any sense, we are aware of no principle upon which it could sustain an arbitrary right to retain it as against Eindeisen. He could reasonably insist upon its return; and'we think the refusal of the company to return it upon request, for the purposes named, Eindeisen offering to'remedy the only objection to it which was specifically pointed out, and its further refusal to point out the other defects which it purposed insisting upon on request, and in such manner as to give the plaintiffs opportunity to seasonably furnish a proof of loss which should satisfy the company and the requirements of the policy, as they offered
We come to this conclusion the more readily in view of the fact that there is nothing in the case, as presented, even tending to show that anything complained of by the defendant has prejudiced it-in the least; or that any objection suggested to the proof of loss is other than purely technical. We believe the true principle of the law is well stated in Appleton Iron Co. v. British American Assurance. Co. 46 Wis. 23, where the court say: “ When a forfeiture of an insurance policy is alleged on merely technical grounds, not going to the risk, the contract of insurance will be upheld, if it can be, without violating any principle of law.”
The judgment is affirmed.