160 Ind. 392 | Ind. | 1902
Lead Opinion
This action is based, on a fire insurance policy executed by appellant to appellee. There was a judgment below in favor of appellee.. Appellant assigns as error the overruling of its separate demurrer to the second and third paragraphs of complaint, and the overruling of its motion for a new trial.
The second and third paragraphs of complaint disclose the fact that proofs of loss were not made within sixty days after the fire, as required by the policy, but, in lieu thereof, the appellee seeks in said paragraphs to charge a waiver of such requirement. Appellant’s counsel contend that said pleadings are in this respect insufficient. In the second paragraph of complaint it is alleged that when the fire occurred the appellee gave oral notice thereof to appellant’s local "agents who had issued said policy; that said agents gave notice to appellant; that the latter sent its adjuster to adjust the loss on appellee’s said building; that said adjuster and an agent of appellee examined said building with a view to the adjustment of said loss; that said adjuster and the- appellee’s said agent entered into negotiations concerning said loss, and continued said negotiations from time to time until after the time within which, by the terms of said policy, the appellee was required to furnish formal proofs of loss;' that appellee and appellant were unable to agree as to the amount of said loss; that the same has never been adjusted or settled; that the appellant refused and still refuses to pay the same, but that the appellant did not base its said refusal on the failure of appellee to furnish proofs of loss, but on other grounds, altogether. By way of showing the theory of the pleader, there is added to the averments upon this subject the averment, or statement, “that by its said conduct the defendant waived notice in writing from the plaintiff and the formal proofs of loss required by the terms of said policy.” The third paragraph of complaint contains the same allegations in substance, except that it does not allege that the negotiations continued until after
An adjuster who had been sent' for the express purpose of adjusting a loss has authority to waive a provision of the policy concerning proofs of loss. Aetna Ins. Co. v. Shryer, 85 Ind. 362; Indiana Ins. Co. v. Capehart, 108 Ind. 270; McCollum v. Liverpool, etc., Ins. Co., 67 Mo. App. 66, and cases there cited.
It must be confessed that the second paragraph of complaint is wanting in the allegation of facts sufficient to constitute a technical estoppel, although the paragraph goes some length in that direction. We think, however, that it can be affirmed from the facts alleged that if there has not been a waiver that can be declared as a matter of law, the appellee was at least entitled to take the verdict of a jrrry' upon the mixed question of law and fact as to whether there was a waiver.
In Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689, where the fact was that an agreement has been made by an insurance company to extend the time of payment of a premium note, it was said by the Supreme Court of the United States: “Forfeitures are not favored in the law. They are often the means of great oppression and injustice. And, where adequate compensation can be made, the law in many cases, and equity in all cases, discharges the forfeiture, upon such compensation being made. It is true, we held in Statham’s Case, 93 U. S. 24, that, in life insurance, time of payment is material, and can not be extended by the courts against the assent of the company. But where such assent is given, the courts should be liberal in construing the transaction in favor of avoiding a forfeiture. The case of leases is not without analogy to the present. It is familiar law, that, when a lease has become forfeited, any act of the landlord indicating a recognition of its continue
In the opinion of the court in Queen Ins. Co. v. Young, 86 Ala. 424, 5 South. 116, 11 Am. St. 51, we find the following language: “Conditions in a policy of insurance, limiting or avoiding liability, are strictly construed against the insurer, and liberally in favor of the assured. Though a waiver may be in the nature of an estoppel, and maintained on similar principles, they are not convertible terms. The court's, not favoring forfeitures, are usually inclined to take hold of any circumstances which indicate an election to waive a forfeiture. A waiver may be created by acts, conduct, or declarations, insufficient. to create a technical estoppel. If the company, after knowledge of the breach, enters into negotiations or transactions with the assured, which recognize and treat the policy as still in force, or induce the assured to incur trouble or expense, it will be regarded as having waived the right to claim the forfeiture.”
In Kiernan v. Dutchess, etc., Co., 150 N. Y. 190, 44 N. E. 698, it was said by the New York court of appeals: “There may be a waiver by express agreement or through estoppel, but neither is required t'o effect that result, as words or acts from which an intention to waive may reasonably be inferred are sufficient, at least when acted upon. Titus v. Glenns Falls Ins. Co., 81 N. Y. 410, 419; Roby v. American Central Ins. Co., 120 N. Y. 510; Armstrong v. Agricultural Ins. Co., 130 N. Y. 560. The distinction between waiver and estoppel, as applied to the law of insurance, is not in all respects clearly defined. An express waiver is in the • nature, of a new contract, modifying to-.-some extent the.-, old one,
Cases in this State, as well as elsewhere, justify the conclusion that there are some acts -that the court's will treat as a waiver per se. In the carefully considered case of Aetna Ins. Co. v. Shryer, 85 Ind. 362, 368, where insufficient proofs had been furnished within the time, it was said: “The doctrine that an insurance company, by putting its refusal to pay the loss upon a definite ground different from a want of preliminary proofs, *or of defect in their form or substance, waives the right to insist upon the failure to make such proof as a defense to an action on the policy, is in harmony with the elementary principle that a party, who places his refusal upon one ground, can not, after action brought, change it to another and different one. Hanna v. Phelps, 7 Ind. 21; Turner v. Parry, 27 Ind. 163 ; Bartlett v. Adams, 43 Ind. 447; Blair v. Hamilton, 48 Ind. 32; Embden v. Augusta, 12 Mass. 307; Gerrish v. Norris, 9 Cush. 167. There is no reason why this rule should not apply to policies of insurance as well as other' contracts.”
In a 'subsequent case it was said by this court: “Besides, g'ihce it appears "by 'the complaint 'that an adjustment had
In a number of cases the Appellate Court of this State has held that a denial of liability before the insured is in default in furnishing the proofs is a waiver. Continental Ins. Co. v. Chew, 11 Ind. App. 330, 54 Am. St. 506; Aetna Ins. Co. v. Strout, 16 Ind. App. 160; National, etc., Ins. Co. v. Whitacre, 15 Ind. App. 506; Western Assur. Co. v. McCarty, 18 Ind. App. 449; Home Ins. Co. v. Boyd, 19 Ind. App. 173; Home Ins. Co. v. Sylvester, 25 Ind. App. 207. As said in National, etc., Ins. Co. v. Whitacre, supra: “They proceeded to Investigate’ the loss, and denied their liability upon other grounds. There was, therefore, a waiver of the requirement for strict proof.”
It would be- difficult to formulate in advance rules by which it could in every instance be determined whether the conduct of the insurer amounts to a waiver per se, or is only evidence of a waiver that should be submitted to a jury to ascertain whether it will draw the inference of an
If, before the time for furnishing proofs of loss has expired, an insurance company denies liability upon the policy, the assured can only infer that it would be a useless act to submit proofs of loss, and therefore the company will not be permitted afterwards to object that such proofs were not furnished. If, during such time, the company puts its refusal to settle on other grounds, and not on the ground that proofs of loss have not been furnished, it ought not, as pointed out in Aetna Ins. Co. v. Shryer, supra, to be permitted to shift its ground in court to the extent of insisting upon a condition in its policy in the nature of a forfeiture that it is too late to comply with. We see no reason why such cases should not be put on the ground of election. The company, instead of awaiting proofs as a basis for investigation, voluntarily assumes a position that, if maintained, would render it useless to furnish' proofs; and, as the condition is in the nature of a forfeiture, that the courts are disposed to relieve from if there is any basis for so doing, it seems but reasonable to prevent the*company from taking an inconsistent position with reference to the clause thereafter. But, whatever is the philosophy of the rule, we think, in view of the authorities we have cited, that such conduct, during the time that the proofs might have been made, is a waiver per se. In the Shryer case, to which we have referred, it was said on page 367: “Another reason for holding that the appellant waived the preliminary proof
Under the facts pleaded in the second paragraph of complaint relative to the negotiations continuing until after the time for furnishing proofs of loss had expired, it may be that it can not be affirmed that there was an election, because it is not alleged that the adjuster had knowledge that the proofs of loss had not been furnished, and it is also to be noted that it is not alleged that appellee’s agent was an agent for the purpose of settling the loss, or that she affirmed his acts. We are inclined to think that, if the paragraph is sufficient, it must be because of the allegations
It is contended by appellant’s counsel that these paragraphs should be held bad on the ground that the averment that the parties, were unable to agree upon the amount of loss or damage controls the averments that defendant made no objection to plaintiff’s claim on account of her failure to furnish proofs of loss, but based its refusal to pay the claim on other grounds. We do not think so. A refusal to pay because the claim of loss is excessive may- be a
We quote the following from the language of the court in Aetna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125: “The evidence tends t'o show that the fire occurred on the 8th day of November, 1892; that the insured at once gave notice of this to the insurance company, and that within a few days thereafter the adjuster of the company came to the farm of the assured, examined and inquired into the loss, the cause of the fire, etc.; that the assured stated to the adjuster the particulars of the fire, submitted to him a written memorandum of the items of property destroyed, and their value. Some conversations and negotiations took place between the adjuster and the assured, which resulted in the adjuster finally offering the assured $900 in full settlement of the loss. This offer was declined by the assured, whereupon the adjuster departed. We think the conduct of the adjuster justified the Conclusion of the jury that the insurance company had refused to pay the loss.”
The evidence clearly supports the verdict. The policy was upon a brick building known as No. 308 Upper Water street, in the city of Evansville. About the middle of September, 1899, while said policy was in force, an attached building, known as No. 310 Upper Water' street, was destroyed by fire*, Said fire caused a slight’ damage to the ceil
There is no more of merit in the objection that the court did not instruct the jury that under the first paragraph of the complaint the appellee must show that proofs of loss were made within sixty days after the fire. The instruction did not purport to relate to any particular paragraph. It undertook, in general terms, to state to the jury what appellee must prove in order t'o recover; and when the element of proofs of loss was reached the court instructed the jury that the appellee must prove that appellant had waived such provision of the policy. Subsequent instructions dealt' fully with the subject of waiver.
Instruction number three is, in the abstract, a correct statement of the law of waiver, and it is in accord with the evidence, but it is objectionable because it instructed the jury as to the consequence if the jury should find, in connection with other matters of hypothesis, tibat the appellant admitted it's liability during the course of the negotiations. We think that the court instructed without the issues in the particular mentioned. This would ordinarily lead to a reversal, but as an examination of the evidence, both of appellant and appellee, makes it plain that the jury could not have reached any other just conclusion upon the subject of waiver than the conclusion that it did reach, we deem it our
It is a matter of grave difficulty to determine the theory of the second and third paragraphs of complaint as to when the waiver occurred, although, as we have shown, a cause of action was stated in either event. But, having examined the appellee’s evidence, as well as that of appellant, and finding that the evidence as to waiver was directed to the question as to a waiver by conduct during the sixty days, and that the appellant’s own evidence made out a waiver within that time, we feel justified in holding that the theory upon which the case was tried was that there was a refusal to pay before the time for furnishing proofs of loss had expired, and to that theory the parties will therefore be held on appeal.
We find no prejudicial error. The judgment is affirmed.
Rehearing
Appellant has filed a petition for a rehearing in this case. In the brief of counsel in support of the motion there seems to be no serious contention that the result was wrong, but exception is taken to the following sentence in the opinion: “If the assured regards his damage as amounting to a certain sum, and will not take less, while the company refuses to give that sum, it but remains -to submit the contention to the courts.” The opinion had to- do with a case where it prima facie appeared that the company had thrown the assured off her guard until it was too late to comply with the condition. The court did not have before it a case of a mere division of opinion between the parties, that resulted in a refusal of the company to pay the amount demanded, where there was afterwards, and within the sixty days, negotiation that put the affair so far upon its original footing that the courts would hold that the filing of proofs of loss afterward could be justly required, as an act that .it could be said- that the company, in view of the contract and its subsequent conduct, had a right to expect.
As to the element of the right to demand an arbitration of the damages, it is sufficient to say that no such demand was made by the appellant.
The petition for a rehearing is overruled.