71 Wash. 79 | Wash. | 1912
Action upon a fire insurance policy, and appeal from judgment awarding recovery.
It must be admitted that there is some conflict of opinion upon this question. While it is uniformly held that this requirement is a valid one, and can only be defeated by a waiver, the conflict arises as to when this waiver may be made in order to bind the insurer. It will not be necessary to discuss these conflicting authorities, since the only thing of value in this opinion is to indicate which doctrine this court will follow. After due consideration, we have decided to unite with those courts which hold that the waiver will be effectual although the act or conduct of the insurer relied upon to constitute such waiver is subsequent to the time fixed by the policy within which proofs of loss must be furnished. We cannot understand why, when the insurer, with full knowledge of the terms of its policy, knowing that, under a strict construction of its terms, the insured by his failure to comply with those terms has breached the condition of his recovery, it may not waive such breach; and when it so acts as to lead the insured to believe that he has not lost his rights under the policy, but that it is still in full force and binding upon the insurer, may not be held to as strict accountability as when the waiver takes place before the time fixed in the policy in which to furnish proofs of loss expires. Such a requirement as to time is nothing more than a condition involving forfeiture of a substantial right, and the application of the doctrine of waiver should be as effectual after the time
Respondent contends that, under an agreement entered into between the parties on May 11, 1910, appellant cannot now claim the benefit of any subsequent waiver. This agreement is as follows:
“It is hereby stipulated and agreed by and between C. M. Hatcher, party of the first part, and the Imperial Underwriters of Canada (The Sovereign Fire Assurance Company of Canada) and other companies signing this agreement, party of the second part, that any action taken by said party of the second part in investigating the cause of fire or investigating and ascertaining the amount of loss and damage to the property of the party of the first part caused by fire alleged to have occurred on the 6th day of May, 1910, shall not waive or invalidate any of the conditions of the policy of*82 the party of the second part held by the party of the first part, and shall not waive or invalidate any right whatever of either of the parties to this agreement.
“The intention of this agreement is to preserve the rights of all parties hereto and provide for an investigation of the fire and the determination of the amount of the loss or damage in order that the party of the first part shall not be delayed unnecessarily in his business, and in order that the amount of his claim may be ascertained and determined without regard to the liability of the party of the second part.
“Witness our hands and seals in duplicate this 11th day of May, 1910. C. M. Hatches,
“J. T. Anderson, for the Imperial Underwriters of Canada, The Sovereign Assurance Company of Canada.”
We cannot so hold. This agreement was made for the benefit of the company, and it could, if it so desired, waive any right it had obtained thereunder. To hold otherwise is to say one cannot waive the stipulations of a contract, nor depart from a right he has once obtained. Such is not the law. Besides, this waiver is not inferred from “any action taken ... in investigating the cause of the fire or investigating and ascertaining the amount of loss.” It rests, if at all, upon the direct statement, “We will waive the formal proofs of loss,” and not upon any act or circumstance which might be interpreted by the jury as indicating an intention to waive. In other words, by this agreement the company insisted that its subsequent acts should not be subject to the interpretation of any one except itself, and that it and it alone should have the right to say what it would and what it would not do in insisting upon any stipulation in the policy; and having thereafter expressly waived, it cannot now insist that this agreement makes such waiver valueless.
It is also insisted that we have held in Deer Trail Consol. Min. Co. v. Maryland Casualty Co., 36 Wash. 46, 78 Pac. 135, 67 L. R. A. 275, that there can be no waiver after the time
There is also some contention that the pleadings only raise an issue of waiver before the expiration of the sixty days, and not subsequent thereto. The relevancy of this evidence was not questioned at the trial. It was objected to as “immaterial,” meaning, as we take it, to raise the same question as is here raised, that there could be no waiver after the sixty days had expired, a question of law rather than one of pleading. We do not think that counsel, having failed to suggest any question of issue, or surprise, or unpreparedness to proceed on account of the admission of this testimony, should now be permitted to insist upon a technical reading of the
The judgment is affirmed.
Mount, C. J., Fullerton, and Ellis, JJ., concur.
Main, J., took no part.