5 Indian Terr. 703 | Ct. App. Ind. Terr. | 1904
The appellant assigns ten specifications of error. They are all embraced in the three following proposi-sions, as set out in appellant's brief: “First. That the property insured was not owned by the plaintiff (appellee). Second. That no sufficient proof of loss was furnished, and the failure was not waived by the company's agent. Third. Mrs. Paul (the divorced wife of plaintiff) should have been allowed to testify.''
As to the first proposition: One of the provisions of the policy of insurance sued upon is: “This entire policy shall be void if * * * the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.'' The answer, by way of defense, sets up the above condition of the policy. It is claimed by the defendant: First, that the ownership of the building and a material part of the furniture covered by the policy was not in the plaintiff, but that it belonged to his wife; second, that the plaintiff, being a white man, and not a citizen of the Cherokee Nation, it was not possible, under the laws and treaties of the United States and of the Cherokee Nation, for plaintiff to own the fee in Cherokee lands, and therefore he did not own it. Plaintiff's wife was a Cherokee, and he testified that at the time they-were married, a short time before the burning, his wife gave him the property. There were some pretty strong circumstantial facts proven which tended to show that she had not done so, but this question was submitted to the jury on a charge of the court which fairly and plainly presented the question, and was not objected to by either of the parties on that point, and the jury found against defendant’s contention. In our opinion, the proof of ownership of the property by the plaintiff as against his wife was sufficient to justify the court in presenting this question to the jury.
On the point that the Cherokee Nation owned the fee, and that the plaintiff did not, and, therefore, that the condition of the
The next contention of the appellant is that no sufficient proof of loss was furnished, and the failure was not waived by the company's agent. The proof clearly shows that no proof of loss, sworn to as provided by the policy, was presented to the company, until about 40 days after the time provided by the terms of the policy — 60 days after the fire — had expired. But a few days after the burning, Mr. Drumm, the company’s adjusting agent, who lived at Topeka, Kan., came to the place, and saw the plaintiff, and, after inspecting the burned premises, said to him, “You must make me out an invoice of the loss;” and this the plaintiff did, but did not swear to it. He first took it to Mr. Ratcliff, the local agent, who had procured the insurance for the company, and offered it to him, but Ratcliff told plaintiff to take it to Mr. Drumm, who was in an adjoining room. This he did. Mr. Drumm received it without objections, saying, "This is all right, but I have got to consult the company before I can settle with you.” This declaration of his is testified to by plaintiff, and nowhere denied by defendant. That he received this proof of loss is admitted by him in his letter to Mr. Burkhalter of December 8,1894. No objection is made to this proof of loss, either in the correspondence or at the trial, except that it was not sworn
“In an action on a policy, when the company relies on the defect in proof of loss, the burden is on the company to show that it notified the assured of such defects within reasonable time.'' Killips vs The Putnam Fire Ins. Co., 28 Wis. 472, 9 Am. Rep. 506. The policy in the above case contained a clause limiting the right of action thereon to 12 months after the loss. The court held the clause valid, but said: “But the stipulation might bo modified or -waived by the parties, or the company might be estopped by its own acts from claiming the benefit thereof. Where, by any act or omission of the responsible officers and agents of the company, the insured is induced to suspend, for a certain length of time, the performance of acts required on his part after a loss, such time should not be reckoned as a part of the period to wdiich the right of action is limited.'' After stating the facts, the court proceeds to say: “These facts had a tendency to prove that plaintiff was induced by the conduct of said general agent to suspend the making and furnishing of his second proofs for a period equal to that between the end of twelve months and the commencement of his action (about fourteen weeks), and, if the
In this case the fire occurred September 30, 1894. The 60 days allowed by the policy for proof of loss expired on November 29th, and 42 days thereafter, — January 10, 1895 — the second proof of loss, properly sworn to, was mailed to the company's agent. No objection was made to the proof furnished by plaintiff to the company's agent on October 3d until November 19th, the date of Drumm's letter to Burkhalter, a delay of 47 days; and therefore, according to the rule laid down in the case of Killips vs Putnam, supra, deducting from the time allowed by the policy the time that plaintiff was delayed in making proof of loss caused b}the fault of defendant, ,the second proof was clearly within the time allowed by the law-, under the circumstances of the case. But the plaintiff does not have to rely upon that, because the refusal to'return the first proof of loss, which, as before stated, had been received with the assurance that it was “all right,” in our judgment -was a -waiver- on the part of defendant of the defect in its execution. “The detention of proofs for thirty-eight days, with knowledge of defect, without making objection, will sustain a finding that the proofs werte accepted as sufficient, and of waiver.” Keeney vs Home Ins. Co., 71 N. Y. 396, 27 Am. Rep. 60. “Delivery of proof to the local agent and retention by him without objection is a waiver, although the policy provides that the proofs shall be furnished at the home office.” German Ins. Co. vs Ward, 90 Ill. 550. “The formal proofs of loss required by
The next and last proposition is that Mrs. Paul should have been allowed to testify. Mrs. Paul was the divorced wife of plaintiff. The proceedings in relation to the court’s action in declaring her disqualified as a witness were as follows: “By Mr. Hutchings: If the court please, we offer in evidence the testimony found in transcript of Julia A. Barbee, the divorced wife of the plaintiff in this case, she having been divorced from him a short time after the fire occurred for which this action is brought. By Mr. Davis: The plaintiff objects to the introduction of this evidence upon the ground and for the reasons that at the time this fire occurred, as shown by the evidence, this witness was the wife of the plaintiff, and that under our statute, which is in force here, that the wife cannot testify in any case for or against her
Finding no error in the proceedings of the court below, its judgment is affirmed.